New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-04-16

cale tAem WUere tDey WouI0 DO5 IN
jure the public health, at any place
whether it he public or private market
and they may be abated if it turns out to be
nuisance. So that all the sanitary powers
apply to this class of markets as we'll as to
public markets. There is no question tina,
the Legislature has the power to regulate
The markets; but we are considering here
what the Legislature has done and not
what they could do. The Legislature here
has granted the right to erect private mar.
kets in contradistinction of those erected
by the public. 1t is the manner in which
those institutions are got up that gives
them the distinction. A public market is
one erected at the public expense, and from
which the public derives benefit; a private
market IS one carried on at private expense,
and IRON which the public derives no bene-
tit directly. In the Judgment of the Legis-
iature OF 1866, the sanitary question did not
ehler INTO the subject of vending meat and
vegetables, because it provided in the very
act tor this, by applying the ordinary sani-
tary law, which is at the present time, and
was at that time, perhaps under the direc.
ton and control of the Board of Health.
then conclude that go far as the city
OF New Orleans is concerned, she has
shown no interest which would entitle her
TO demand this injunction, because the city
OF New Orleans has no control over anv Of
the markets. She has given out the public
markets TO the lessees and she collects the
rents from them. That rent can be col
lected, whether the private markets are
| kept in force or not. If the lessees of the
markets should raise the issue, possibly thev
might have the right to stand in judg-
ment, provided they could show
| legal status on which to place their
demand. But so far as the city of New
! Orleans is concerned, she has no interest
in The ma tier at all; it makes no difference
| to the city whether the lessees of the mar
| kets make money or not. The police power
can not be invoked and applied for the pup
| Iose OF enhancing private interest. That
| Is an abuse Of that power. That is
not what the police power is given tor,
and 1t ceases to be police power when it
| is used for private purpose it is only for
the public purpose that it can be used.
There is no question that under the police
power the sovereign can do almost any,
thing, but it must always be done in the epub-
lie interest. The public is here Represented
by the corporation, and the corporation has
no interest in the matter. She made con-
tract with two parties, with one party to
take the revenues of the public markets at
liked amount for stated period; and she
deals with the private market men by col
lectlng the license from each one. That is
the city's interest, and that is all the inter.
est che has.
The injunction therefore, as far as the
city OF New Orleans is concerned, will be
denied her; and considering that Stafford
has shown a vested right in contract,
which he paid for to carry on his business,
that contract can not be disturbed until it
expires; no matter whether this law is valid
or not, because it is beyond the power of
the Legislature to disturb it. The injunc-
tlOn is granted, as far as Stafford is con-
cerned, against the Mayor and Council of
the city of New Orleans.
Spaulding, Bidwell a. McDonogh vs.
Rhoda osewood.-Petironers allege de-
fendant was under contract with them for
thlrty-fve weeks; that she broke her con-
tract, but sued for services for twenty seven
weeks in nine different suits in the Fourth
Justice Court: that the Fourth District
Court enjoined these suits; that the Su- |
preme Court decided it had no jurisdiction;
but While the injunction was in force. de- |
fendant illegally obtained judgment in the |
nine suits; that these suits are really but |
one; that the judgments are in contempt of |
,be Injunction, and void, and pray for an |
injunction on the execution of the iudg- !
ments of'the justice court. Which is issued |
on bond Of $500.
Superior Criminal Court.
Thirty-twO cases OF murder, sixteen of |
false imprisonment, fifteen of perjury. ten |
OF burglary, ten of embezzlement, seven Of |
seven Of forgery, five of rob-
peiy: HNe W eTdAu larceny, Two OF arson,
two obtaining goods, etc, under false pre-
lenses, one Of rape, one Of misdemeanor in
office, and one OF carrying concealed
weapons, transferred from the First District
Court, were docketed, on motion of the At
torney General.
The court announced that in the matter
Of bail, it should be governed by the
amount required by the prosecuting officer
Of the State, unless the defense could show |
il was excessive.
second District Court.
Succession of Sulmanite Bemit, wife of
Edward A. Michel opened.
Fifth District Court.
Judge Culloln rendered the following de-
,ision:
Charles Maduel, dative testamentary ex-.
,cutor. etc, and NJ. d. +. Cabal,ero, wife of
lose Maria Conte, VS.. r. II. Mousseaux. ct
t.-The defendants except to the petition |
If plaintiffs on four grounds:
J. That This court has no jurisdiction over
his case, the plaintiffs representing sue |
ession. This is not tenable. Representa-
ives of SUGGESTIONS may sue in any court !
laving jurisdiction over the domicile of the !
defendant, otherwise it were impossible to
econcile the articles of the Code Of Prac- {
ice. A certain court alone has jurisdiction ,
ver a succession, and it is always that in ,
which it has been opened. 1t, therefore,
nust be SUED before the court having .juris- | l
ictiOn over his dOmicile, but he can sue in -.
ny other court whenever the enforcement
his rights requires it. The exclusive
overs OF probate courts are enumerated Il
] article 924, Code of Practice, and they
ill be found not to cover this case. Their | =
lrisdictiOn can not be extended to any
ase not specially provided by law See
T., 2l3; 10 L., %; ii L., 33l. o
2. Defendant denies that Charles Maduel q
the dative testamentary executor OF
aballerO. This objection is obviated by
le certificate of the clerk Of the Second o
district Court, parish of Orleans, attached G
} an authentic copy of Judgment decreeing p
I'm to be dative testamentary executor,
G. The judges certificate is useless. "a
g. 1t is excepted that the petition shows p
} cause of action. l can not concur, as, in | h
Y opinion a sufficient cause is alleged. n
q. 1t is excepted that there is mis- y
inder of parties plaintiffs herein. That "
re-. Conte has not set forth any grounds to
hereon she can claim to become party W
this suit, and has made no showing; that
e does not allege that che has any inter- ~
{ in this suit or controversy" There is al
'parent ground for this exception, but il M
sappears after close inspection of the III
titiOn. She nowhere alleges her heirship, =
II that she was ever placed in possession ~
the estate of Jose Maria Caballero, OF pr
hose last will Francisco Pizarro Martinez le
Is made the dative testamentary execu-
r. But she does allege that On the
enty-frst of April, 1871, said executor OF
I'd an account OF his executorship which la,
e opposed and which the Second District oe
urI dismissed; that the Supreme Court =.
7ersed the judgment of the district court, w.
d rendered judgment in her favor against IN
> executor. for sums amounting to sa
2,7I4 %, with interest. She further tn
eges that the present defendants are