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

Il was expressly held that market house ID moi
necessarily public property, but my DO the OBJ
jeet Of individual ownership. IL 10 pace "
which the public have free admission tor NE P'n.
J pose Of p1rcldstag provisions. But the right o.
selling them ID not free to the public at large.
That right IL usually reserved to q limited num-
New Orleans against the heirs Of duillotte, u
An, $40, the Supreme Court saysas follows: AL
though market may not be locus pubtscns 10
the sense that the ownership Of the soil 10
lic place in this sense. II is place to which all
persons have right TO resort daily TO supply
themselves NTH such provisions and necessaries
as are there vended. and - order and cleanliness
the market, which 10 thronged at certain hours
with all classes of persons and flied with all
manner Of pertshdble comestibtes, must, OF neces-
sity. be under the control Of vigorous and eff
cient police. to prevent II from becoming an In
tolerable nuisance. II Ia, therefore. o pubic
place, because it ID submitted to the exclusive
control and government OF the city authorities.
In the case Of Cutting just cited, this court
OF the sovereign power, and the right OF rogu-
lstng them 10 necessarily power Of municipal
police. Zee Blackstone's Conn.,, vol. ], 2. 274;
Domat ''Droit Public" lib. /, sec. g. This is
vested by positive law in the mayor and council
OF each municipality upon whom rests the
responsibility Of The peace, comfort and order OF
the assembages collected at fixed hours at these
great thorougfares."
! will add that markets are not established as
source Of public or private profit, but for the
| public good.
think that the Supreme Court in these cases
| In which they have Incidentally spoken OF mar
kets, have unmstakably characterized them, and
| hat, as thus characterized by that tribunal mar
kets are places where eomestibles, perishable in
their nature, are sold for the daily consumption
| Of the people, whici from the very nature OF the
things therein sold require peculiar sanitary reg
ulations and thus fall within the police power OF
cities. II this limitation be not accepted then
The right OF city to establish and regulate the
| place. time and manner OF selling every thing in
which men deal must be conceded. Gan 1T be
that the Legislature meant TO make the police
power Of city q vortex which should draw into
| itself the regulation OF all the commerce Of the
| city, That Is the question.
Itseems to me that the city, when IL executed the
| co tract under which the market b zsar was Gre
ated and leased, by the very terms they employed,
by their coupling together the two substantives,
| market and bazaar, and desig mating tho place
| market bazaar, chow that the place which they
| Established there, although resembling market,
| was, in their opinion and Intention, different
| from market; that 10, it was q place In which
the manner OF sale OF articles was to be the
| us in q market but from which the things ordi-
nsrly sold in market were altogether excluded.
| The method was that OF q market. the matter en-
| tirey distinct
| But the whole power OF the CITY over markets
| springs from the fact that vegetables and meats
liable to decay and purify therein sold daily
in large quantities; these being exc uded from
| the p ace, IL loses the essential quality OF
market as II is defined in our jurisprudence. l
| think, therefore, that the designation OF this
market bazaar Nj pubic revenue rests entirely
| upon the ordinance OF the city itself, and has
| legal foundation neither in the nature Of the
| thing nor in any act Of the Legislature.
But it cannot be commended that the city can,
by its own act and Independent OF any legislative
| authority, make thing which is not necessary
to its municipal existel CO to the exercise OF
the powers which fairly belong to the municipal
n mn fn ATtnl fann rnnn nj and
thereby exempt the revenue and the thing from
seizure under execution. II this doctrine be ad-
mitsed the city might build and run factories,
and, having simply declared that they made them
sources OF public revenue, render them exempt,
do not find that any Of the decisions the text
writer's go TO this length, but on the contrary,
limit the exemption to the two classes Of cases
above specified. First, to such things as are
ton OF corporation; or, in the second place, to
such things rs by the statute have been set apart
as public revenue for the city. In neither OF
these classes does this case fail. New Orleans
vs.. Home Insurance Company, 20 An. 81.
The character OF the title under which the city
holds the land upon which the market bazaar 10
built has not been discovered.
Second-lt is urged that the nature Of the
original obligation upon which the Judgment of
law was rendered was such as to preclude the de-
PENDANT from making the seizure upon this prop
erty.
Ranger was cited and urged as having bearing
on this question. In that case I held that the
power to tax was prerogative of the Legisla-
lure, and not In any sense judicial. That since
the Legislature had clearly implied in the act
authorizing the obligations that they were not
to be paid by taxation the court could not
direct a tax to be levied to pay them
in the absence Of any provision of the
Legislature to that effect therefore refused the
mandamus directing the levy OF a tax. The doc |
trine which there laid down, If correct, would |
have been complete defense to the action at
law The ground Of the decision in that case
was that the Legislature had not authorize d the
levy OF the tax. subsequent case, in which |
maDdamus was asked to compel the City Council |
to put a judgment into the annual budget, &C |
cording as the Legislature has directed should |
be done with final Judgments against the city. is
now under consideration. In the Ranger case it |
was enough to say there was no act of the Legis-
lature authorizing the levy Of the tax aud author
ity could not be implied, because the Legislature
intended the obligation should be paid out of |
specific property and only to that extent was the
city bound.
My conclusion in that case may be entirely cor |
rect-that the city was not bound as general |
debtor upon its bonds and my conclusion here NAV
equally correct, that the levy of this execution
cannot be stayed. In word, the defense to |
debt is one thing; the defense against final |
Judgment, in which the debt is merged, is quite
another. |
The question in the Ranger case was whether
the authority to levy the tax could be inferred |
FROM it's having authorized the issuance OF the |
bonds, for it was that ground alone upon which |
the argument for the mandamrs was based NV
conclusion was that the Legislature, in the act |
which gave the authority, so far from giving |
power to tax, by implication, had negatived any |
such power and, as it seems to me, limited the |
obligation to that of pledge of certain specified |
property.
The case of Klein against the city was also |
cited, and it was thought had then passed |
upon similar question. | have examined the |
bill OF exception in that case and find that NV
ruling was confined entirely to the fact that |
squares which were public property, which |
formed portion Of the wharves or, lsvees, and |
ground rents, which were considered to be public |
revenue, could not be seized
Indeed, the question here is simply this-Will |
suit in equity lie to restrain q seizure under
an execution, issued on judgment at law, upon |
grounds which might have been urged as q de- |
Tense in the action at law? find the autho,isies
without exception, to hold that such suit will |