The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1880-01-03
THE PRIVATE MARKETS.
Decision in the Suit Of the City
to Collect the $500
License Tax.
IN Victory for the Market MenText
of the Decision.

T0re0 yesterday Dy Judge MONROE, In Vi
Third District Court. In the suit of the cit
against D. Barthe, q private market man. to re
cover from him the sum of $500. claimed to b
due for license for the year 1878:
No. Bo,1s.. City of New Orleans We. Bernar
Burthe.-The city OF New Orleans sues TO re
cover from the defendant the sum Of $500 as
license for the year 1879 upon the trade Or bnHi
ness of q private market. The allegations D
an osdaaece a adonted December s TO- isTs
Section Oh of this ordinances reads aa follows
Every member OF ac9mpany or firm an,
every person not eenHeeted with a company o.
Arm keeping private mar kst. $500 (
IL is further alleged that plaintiff has th,
right to. enioin defendant from pursuing BIZ
occupation until the payment Of the license
and an Injunction accordingly issued.
To This pstitiQn an execution Of tis penden'
wss aled based upon , snt pending Ia "a.
been overruled. the defendant Tor answer
avers:
six squares % public. market. which i. pro
hibitsd by Aaw: Tint the constltutionaity d
said prohibition is now the, subject OF litiga
ieh. but that while said law Stands
nnrepeaied and III, not. declared I'D.
sonsta5 , The city ,oa,1 New Orleans
d. That even 1.-THE city Ii entitled to recover a
license. for business conducted In district
prohibited by law. the license claimed is In VIC
lation OF the constitution In this. that IL Ia not
sggal and uniform;
Flrst-Roferring tn the first of these positions
That The Oily Council may provide by ordi-
nance the manner In which such private mar.
kes shall be kent. the portion Of the city In
which they shall ba located and the distance
which they shall be removed from the public
markets. and shall have power to provide for
the enforcement Of said ordinances. ;prorided, no
private market shall be nstabiished within a ra-
dlus OF six squares VI any public markst"
Upon thes seventh OF January. 1879. the defend
ant Instituted suit Ia the sixth District Court
ii Y mi n far ~
and avowing itR uncpnstitutippaltty. alleging
also that the city. through the Administrator Of
enforce said law aud The ,'rdinaneas adopted
Snde asgas by e 9s h s,nw which
for and obtained an iriunction to prevent sugh
interference This suit has not been finally
decided. II the meanwhile h lwever. aud dur.
Quoted his business.
The simple. question IL, does The fact that he
has succeeded Ia subscribing the operation IF
the law Rs 10 the particular location .of his
market exempt him from the payment OF the H.
cense imposed by the section mo. 81 of the
city ordinance alre ady quoted?
Clearly not. Tha city does not grant him a
license 10 violate the law. but to conduct q law
ful business: and II. 10 the conduct Of that
which is no part of the business for which the
license is granted him. and In spite of the eff
forts Of the city to prevent him. 1t ia difficult
perceive by what process OF reasoning be Ia
for that reason to escape the payment OF bis
license. The, argument Is that because he sue
ceeds IN defyins the CITY and the law With ref
therefore entitled 10 accomplish the same
thing. with reference to the license, and 1t
collected from those who obey tho law az 10 the
situation of their places OF business. A most
remarkabe conc usion.
:. IL has already been observed that the plea Of
lis pendens based upon the suit IN the Sixth
District Court was overruled; 1t is not. how
ever. too Iafe ,or the court ~ reduce TO writing
ts eminentiy proper that this should be done
since It has been claimed that the action of the
court has brought about conflict OF jnrisdic.
ton with the learned Judge OF the sixth Dis
trfot Court, which this court certainly did not
contemplate and does not believe exists
y VIII be obseFy s by reference e the plead
that the whole object of the suit, as forth In
the petition Il % attack and have. declared IN
CONSTITUTIONAL that provision of law prohibiting
private markets within six squares OF public
mar kets the word license does not occur In
the whole record. The right ofthe city therefore.
means provided by law FOR. that purpose was
not and could not have been involved
The danger which threatened the plaintiff.
that the. Administrater OF Commerce or
the chief OF ualice would enforce the
markets In particular places. There Ia no ale |
CATION that he fears that the city will sue him |
for hls license. and will proceed through the
lection, Had the petition contained such an
alleg alton 1t cannot be doubted, under the urfs
prudence as 1t stands to-day. that he ipjunc
lion would have been refused,
The correctness of this view cannot be- more |
clearly illustrated than by auotng the language
Of the Supreme Court in tho case Of the City |
vs.. Becker" 81 An. GA. to wit:
I'VE think the court did not err In refusing to |
grant the I'M anction IA prayed for by Becker |
The charter. act of 1870, extra session. page &c. |
section IL. paragraph 10, subjects all places for
shows and exhibitions, and phoes for retailing |
LIQUORS, etc. to the police power Of the city. |
20 authorizes the city to levy. impose |
and collect u license tax upon all persons pur-
suing any trade. profession or calling and to |
provide for its collection, and section al nro-
tides that upon the prayer Of the city
any court OF competent Iurisdietlon shall en-
DIN the person or persons 60 liable to pay
license tax. and who shall refuse or ne
rlect TO pay the same. from continuing
10 carry on such business or profession until |
10 shall have paid the same md oil costs and
charges for the. recovery and enforcement OF
SThis tight Oh the city is wholly incompatible
With the right OF the taxpayer to ,enloin tho
Att. In the collection of the license tax.
,r from interfering with him In carrying on
lily business. Hia application for an iniune-
ion is the refusal to pay the license tax, aud
you'd authorize the city TO demand the tnjunc-
ion TO prevent the continuance Of tho bust
il would be impossible to make language
stronger or more applicable than that quoted
or an Injunction against the city to prevent the
collection OF license would Justify al iDjune-
ION IN nAr taSOEt now UhH ~ be ClHful6u ulhI
nch an Injunction. although not applied for.
eally exists2 The Injunction obtained BY de-
eudant must necessarily be construed with
eference to tho allegations OF the petition. and
% constr ued. has no references to the right OF
he city to proceed In the courts for the colec
ION of license, since there ts nothing upon
hat subject In the petition. The Injunction,
moreover is directed to The Administrator OF
Jommerce and the chief OF police by name, and
q no one else; but 1t does not appear that
ither Of these officers have anything to do
Nth the present suit or with the collection of
INV licenses The chief of 90 Ice Is not a mem
M III the Council. aud the Admints' rator Of
Iom MERGE does not of himself constitute ma
II is manifest, therefore, that the plea OF lis
e,dens il without force. and the question 81
onfiict OF jurisdiction cannot be seriously
rged. 49, ~. ~,
\ posed upon keepers of private markets Is
OF equal and uniform, for this: that the same
eenee ia not imposed upon other persons
Oinr the came business In the public markets.
The assistant city attorney being placed on
,e stand as u witness for the defendant was
sked the following questions. and replied as
iven below:
leee private markets!
Ayes. sir. u. 4