The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-11-27
UNITED STATES CIRCUIT COURT.

|
UNITED STATES CIRCUIT COURT.
| THE BAZAAR MARKET.
| Judge Billings sustains the seizure Mad
| Under the John A. Morris Judgment.
! The following is the judgment rendered b.
Judge Billings yesterday in the case Of the cit.
| OF New Orleans vs.. John A. Morris, wherein tn
city asked an injunction forbidding the seizur,
| and sale OF the Bazaar Market TO satisfy judg
ment obtained against the city by defendant
The judgment covers many important points
and we therefore give IL in full:
The city Of New Orleans W.. John A. Morris
| This case 10 before me on an application for OIL
Injunction. The hearing IL upon tho bill, the
| sworn answer, affidayits and counter affidavit
There seems to be no dispute about the facts.
On the 26th day of May, 1876, the defendant In
the bill obaint upon the law side OF the court q
judgment against the complaint for the sum OF
fifty three thousand dollars with interest.
plurias writ OF teri facads has issued upon this
Judgment at law, and under that writ there has
| peen seized the interest OF the city In o "Bazaar
Market" and the land on which the same stands.
In the year 1869 the city owned piece OF land.
II executed u contract with William II. Wells
whereby no was to construct building which
was TO BIO used for STALL for the sale OF merchau-
regetdbtes. The contract with Wells strictly fol-
lowed the terms OF an ordinance Of the City
Council, which ordinance declared that the said
building was made source Of public revenue.
The building was constructed and leased for the
period OF ten years. Rent notes were given, but
prior to the seizure the unmatured notes were
Withdrawn and delivered up to The maker. The
seizure is OF the interest o. the city, subject to
all the lease hold rights OF Wells and his assigns.
This is d bill In equity, then, to restrain the en-
foroement OF o levy under an execution Issuing
upon Judgment at law. Tho bill sets forth two
grounds upon which the judgment il sought.
First, that the property seized is source OF pub.
lie revenue to municipal corporation. and there
fol- 10 not liable tn seizure uuder fl fa, and
ondly, that the obligation the part OF The city
upon which the judgment was obtained, pledged
in perpetuity to the obligee certain property and
created no other obligation, ana that therefore
the plaintiff in the judgment at ltw, the defend
ant here, cannot resort to other PR perty OF the
defendant beyond that to which he was restricted
in the obligation. First. that the Bazaar Market
and the ground upon which it stands are not sub-
ject to SEIZURE because they are sources OF public
revenue to the city.
1t was conceded by the solicitors on both sides
in their very able arguments that certain prop
erty belonging to the city 10 exempt from seiz.
ure; the discussion upon this branch Of the case
being altogether as to whore the line limiting the
exemption should be drawn. Much light is
thrown upon this subject by q careful considera-
ton OF the decisions OF the Supreme Court OF
Louisiana bearing upon 1t. In Edgerton vs. the
Third Municipality, l An, 435, 1t was held "That
taxes were not the subject OF levy under an exc
cution." In that case an attempt had been made
to garnshee the tax payers. In the case OF the
Police Jury of West Baton Rouge vs.. Michel,
An, IS, 1t was held that the court. house and
jail OF a parish were not st, subjects OF
Hart, An, ST., it was held that the
funds collected on judgments for taxes In the
hands OF q constable were not liable to seizure.
In the case Of the New Orleans and Carrollton
Rsilroad Company VS.. Municipality No. l, An,
which the Legislature had given destination OR
appropriation, as q portion OF the permanent
revenue OF the city to enable the municipal au-
thority to exercise its powers OF police and gov
eminent, were removed beyond SEIZURE"
The Circuit Court in the case OF Peterkin VS..
the city, OF Woods Circuit Court Reports,
page 100, and in two unreported cases, that of
Hayem vs.. the city and Klein vs.. the city, No.
1901, has followed the law as laid down by the
Supreme Court of this State. In the first Of
these cases the Circuit Court held that 'money
which had been received in payment Of taxes by
the city was not from the mere fact that it was
deposited In bank made subject to seizure"
In the case OF Hsyem against the city, it was
held that "a party who had given rent notes a.
lessee Of what was beyond alI dispute q market,
could not compensate against these notes the
ordinary obligations OF the city," The case Of
Klein against the city was was but reiteraton of
the State in the case Of the Carrollton Railroad
Company above cited.
An analysis of all these decisions shows that
the exemption has not been extended beyond
two GLASSES OF cases. The one where the prop
erty seized, ss in the case OF taxes court houses
jails and markets was OF such nature as to be
necessary to the continued exercise OF the func-
tions Of the corporation, indeed, to it's very ex-
istence; the other, where the property has been
destined and set apart by an act Of the Legisla-
tn a of fha nituo
source OF permanent revenue.
Does this case fall within either of theee
classes? Ii q market bazaar, that is to say,
place in which merchandise is sold and pur-
chased, but from which traffic in all comestibles
is excluded, can be considered market, it Guild
fall within both Of these classes; if it cannot be
considered as market, then it would fall within
neither, for it is not contended that the Legsla-
ture has given the city any authority to establish
a market bazaar unless it be contained in the
general authority to establish market places.
The nature Of market, to wit, place where
vegetables, fish and meats OF all sorts are fur
nished for the daily sustenaDce Of the population
of city, makes it an incident and indeed
necessity to a large and populous town.
The establishment and regulation OF such
places is but the exercise of the police power of
q city for the preservation of the health of the
but with reference to market bazaar
used for selling dry goods is as much within the
purview Of this police power as is q market
bazaar.
I think, therefore, the nature of the thing is
against its having any public destination, as being
a municipal necessity. Secondly, has the Legis-
lature given TO the city the power to establish
market bazaar as distinguished from a market
In the amended charter of the city facts of 1870,
No. Z, pages IS and Sc. section 12) the city is
given the power in subdivision fifth to fix the
mode Iof inspecting all comes,lbles sod, either
in the markets or other public places and by the
thirteenth subdivision to establish ferries and
market aces. Although these clauses ara sepa-
rated in the charter yet in the acts of 1916, page
so, section l, cited in Billiard Currys Digest at
page 100, as originally enacted, they occur to-
gether distinct branch of a sentence, as fol.
lows: 'To establish one or more market places.
and to determine the mode of inspection of ali
comestibles sold publicly either In said market
or markets, or in other places"
The inference, therefore, is that the Legisla-
ture originally confined markets to places where
comestibles should be sold. In the case OF
Morano against the Mayor Of the city of New
Orleans, 2 La. 219, the Supreme Court, through