New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1875-08-15
COURT RECORD.
SATURDAY. AUGUST 10, 1875.


! NO. tOclODer term, 1904 I60 city o
New Orleans, appellant, vs.. the New Yorl
the Circuit Court of the district of Louisi
| ana Mr.. Justice Swayne delivered thu
opinion of the court August 10.
The questions presented tor our determin
| alton are questions Of law. The facts art
undisputed. On the first of May, 1862, the
army of the United States captured the
city of New Orleans. It was held by mill
tary occupation until the eighteenth OF
March, 1866. when its government was
handed over to the proper city authorities
The condition Of things which existed be.
tore the rebellion was then restored. During
the military occupation it was governed by a
Mayor, board of finance and board Of street
landings. appointed BY the commanding
General OF the department. On the eight
OF June, 1868. Hugh Kennedy was then ap
pointed Mayor. On the eighth of Jul y.
1865, as such Mayor, pursuant to q resOlu-
ton signed by the chairman OF the board
OF finance and by the chairman of the board
OF street landings, both boards having been
appointed 10 the same manner as himself,
Kennedy executed to the applies a lease
OF certain water front property therein de.
scribed. The lease contained. among other
things, the following stipulations: The
city granted to the company the right
to inclose and occupy for their exclusive
use the demised premises for the term
of ten years. The company were at
their own expense to build Q new wharf
in front of the landing, as designated.
with new bulkheads to retain the levee
earth-works throughout the whole extent
of the front assigned to them, they furnish.
ing the requisite labor and materials to
keep the structure in complete order and
repair until the termination of the lease.
and then to deliver it to the city authorities
in that condition, natural wear and tear
only excepted. The company were to have
the right, at their own cost, to construct
building and sheds within the inclosed
space as should be required for the trans
action OF their shipping and freight bust
within year from the date Of the Il ase. of
new materials. in workmanlike manner,
and to be protected by line Of heavy
tender-piles IN front Of sufficient sizs
and strength to enable the largest of
the company's ships to land and load
at the wharf without damage. AL the
improvements, consisting Of wharves, bulk
heads, fender-plles, sheds, buildings and in
closures were TO be kept in good repair by
lease. The lease was not to be transferred
without the citys consent, and in case of
default by the company to fulfill their en-
gagements, the city had the right to amend
it. At the expiration Of the lease all the
improvements made by the company we're
to become the property of the city. The
company agreed to pay an annual rent of
$4,000, in monthly installments, for which
they gave their 2romissory notes: The
making the improvements specified in
the lease. and duly paid their notes
as they matnred down to the eleventh
Of April, 1866, including the one
then due. On the eighteenth Of that
month the city surveyor. aided by a num-
Der of laborers, acting under an order of
the City Council, approved by tho Mayor,
destroyed the fence or Enclosure erected BY
the company. 1t had cost them $1,000. The
company filed bill and supplemental bill,
whereby they prayed for an injunction and
then unpaid were delivered over
BY the military authorities to the proper
city authorities. when the government of !
the city was transferred to the Mayor and |
Council. Those unpaid when this litigation
was begun were held by the city then and
for several months afterward. They we're
rendered to the company by a supple. |
mental answer in this case, and deposited |
n court, where they remain. The note last !
closure was destroyed. The city has not
,endered back the money SO paid, nor has |
t disclaimed the validity Of the paymenr, |
lor has 1t rendered back the amount or any |
part OF il expended by the company in |
making the improvements, nor made any |
'tfer touching the subject. In the process
" the litigation Clark, tho mayor, applied !
% the Third District Court of the city for
IN Injunction to restrain the company from
ebuliding the Enclosure which had been
destroyed, and an Injunction was granted
erved rule upon Clark to show cause
Why he should not be punished for con-
empt i'll taking such action in another tri-
'unal. At the final hearing of the case the
1ty offered III evidt aee order Ne. IL Of Ma
or General Candy, commanding that mil
tary department. The court refused to
eceive it and the city excepted. The fol-
owing facts were agreed upon by the par
les: From the execution Of the lease to
he eighteenth of April, 1866. the company
ad been in peaceable possession of the de- |
aised premises, and and performed all its |
bligatiOns under the lease. No notice was
iven by the city Of the intended demoli-
ion OF the inclOsure. and it was done early |
q the morning. Under tho charter OF 1856.
he city had, before the war, leased portions
its wharves to individuals and COM
anies and had in one instance farmed out
he collection of levee dues upon all the
'harVes by section. The damages result !
1g from the destruction Of the company's
buildings, ETC.. and the necessary employ.
lent in consequence OF this destruction of
dditional watchmen amounts to $S000." At
he hearing the court decreed that Clark, the
layOr, should pay fine of $500 for tho con-
ompt Ut court wherewith he was charged;
nat the city should be epjoined from inter
sring with the possession and enjoyment
tho lease. and that the company should
scover from the city $4,000 tor damages,
nd that the city should pay the costs of
10 suit. Our remarks will be confined to !
10 several objections 60 the decree taken |
y the counse! tor the appellant. The fine !
$500 imposed upon the Mayor is beyond
lr jurisdiction. Contempt Of court is q
1ecitic criminal effense. The imposition of
10 fine Was judgment in a criminal ease.
hat part Of the decree is AZ distinct from |
10 residue as if it were . Judgment upon
D Indictment for perjury committed
J . deposition read at the hearing.
;rosby.,s ease. 3 Wilson, ISIS; Viii
carney, Wheat. AZ This court can
Ike cognizancc Of criminal case only
pom q certificate Of division of opinion | j..
CIOsby's case Mr.. Justice Blackstone
i'd: 'The sole adjudication for contempt
i'd the punishment thereof belong exclu.
vely. and .'ithout interfering, TO each re-
'ective court The Circuit Court having
rst acquired possession of the original f
Ise. was entitled to hold 10 exciusiy civ =.
nil the case was finally disposed of.
'ainter VS.. Taylor. is Wall. go; Hagan
). Lucas, 10 Pet, i4O9; Taylor vs.. Carroll.
How. 5Sil. Any relief to which the (
ty was entitled should have been sough, d
ERE. ard that court was competent to I
We il. either in the original or in an aux. ,
AIRY case. AS 20 any Otner court the mat | t
r was ultra rises Freeman vs.. How. "A {
Oward, $50; Buck Us. Coiback, Wall,
a.. 1t was unnecessary, unwarraDted in | q