Bernard Permoli, Plaintiff In Error v. Municipalityof the City of New Orleans, Defendant In Error
| Decision Date | 01 January 1845 |
| Docket Number | No. 1,1 |
| Citation | 3 How. 589,11 L.Ed. 739,44 U.S. 589 |
| Parties | BERNARD PERMOLI, PLAINTIFF IN ERROR, v. MUNICIPALITYOF THE CITY OF NEW ORLEANS, DEFENDANT IN ERROR |
| Court | U.S. Supreme Court |
THIS case was brought up by writ of error, under the 25th section of the Judiciary Act, from the City Court of New Orleans, the highest appellate court in the state to which the question could be carried.
In 1842, the defendants in error passed the following ordinance:
'Municipality No. 1 of the city of New Orleans.
'Sitting of Monday, October, 31st, 1842.—Resolved, that from and after the promulgation of the present ordinance, it shall be unlawful to carry to, and expose in, any of the Catholic churches of this municipality, any corpse, under the penalty of a fine of fifty dollars, to be recovered for the use of this municipality, against any person who may have carried into or exposed in any of the aforesaid churches any corpse, and under penalty of a similar fine of fifty dollars against any priest who may celebrate any funeral at any of the aforesaid churches; and that all the corpses shall be brought to the obituary chapel, situated in Rampart street, wherein all funeral rites shall be performed as heretofore.
Signed, PAUL BERTUS, Recorder.
Approved November 3d.
Signed D. PRIEUR, Mayor.'
And a few days afterwards, the following:——
'Sitting of November 7th, 1842.—Resolved, that the resolution passed on the 31st October last, concerning the exposition of corpses in the Catholic churches, be so amended as to annul in said resolution the fine imposed against all persons who should transport and expose, or cause to be transported or exposed, any corpses in said churches.
'Be it further resolved, that the said fine shall be imposed on any priest who shall officiate at any funerals made in any other church than the obituary chapel.
Signed, PAUL BERTUS, Recorder.
Approved, November 9th.
Signed, D. PRIEUR, Mayor.'
On the 11th November, 1842, the municipality issued the following warrant against Permoli, a Catholic priest:
v.
Bernard Permoli.
'Plaintiff demands of defendant fifty dollars fine, for having, on the 9th November, 1842, officiated on the body of Mr. Louis LeRoy, in the church St. Augustin, in contravention of an ordinance passed on the 31st of October last.'
To which the following answer was filed:
'The answer of the Reverend B. Permoli, residing at New Orleans, to the complaint of Municipality No. 1;
'This respondent, for answer, says: true it is that the corpse of Mr. Louis Le Roy, deceased, was brought (enclosed in a coffin) in the Roman Catholic church of St. Augustin, and there exposed; and that when there thus exposed, this respondent, as stated in the complaint, officiated on it, by blessing it, by reciting on it all the other funeral prayers and solemnity, all the usual funeral ceremonies prescribed by the rites of the Roman Catholic religion, of which this respondent is a priest. That in this act he was assisted by two other priests, and by the chanters or singers of the said church.
'This respondent avers, that in so doing he was warranted by the Constitution and laws of the United States, which prevent the enactment of any law prohibiting the free exercise of any religion. He contends that the ordinance on which the complainants rely is null and void, being contrary to the provisions of the act of incorporation of the city of New Orleans, and to those of the Constitution and laws of the United States, as above recited.
'This respondent therefore prays to be hence dismissed with costs.
Signed, D. SEGHERS, of counsel.'
The judge, before whom the case was tried, decided that the ordinance was illegal, and not supported by any of the acts of the legislature incorporating the city of New Orleans. But the case being carried up by appeal to the City Court, the decision was reversed, and judgment entered in favor of Municipality No. 1 against Permoli, for fifty dollars and costs.
The judge of the City Court, before deciding the case, made the following remarks, which it may not be inappropriate to transcribe.
'Before entering into statement of the case, as it appeared on the trial before this court, I consider it necessary to give a mere outline of the circumstances which induced the Council of the First Municipality to pass the ordinances of the 31st of October and 7th of November, 1842.
'By an ordinance of the corporation of the city of New Orleans, approved 26th September, 1827, and entitled 'An ordinance supplementary to an ordinance concerning public health,' it was 'Resolved, that from and after the first of November next (1827,) it shall not be lawful to convey and expose into the parochial church of St. Louis any dead person, under penalty of a fine of fifty dollars, to be recovered for the use of the corporation, against any person who should have conveyed or exposed any dead person into the aforesaid church; and also under penalty of a similar fine of fifty dollars, against all priests who should minister to the celebration of any funeral in said church; and that from the first of November of the present year, (1827,) all dead persons shall be conveyed into the obituary chapel in Rampart street, where the funeral rites may be performed in the usual manner.'
'This ordinance continued in force during a period of fifteen years, without any opposition on the part of the Catholic Clergy or population; but in the year 1842, the late lamented and venerable revered Abb e Moni, curate of the parish of St. Louis, having departed this life, some misunderstanding took place between his successor and the churchwardens. The new curate and assistant clergy abandoned the cathedral, and commenced to celebrate funeral ceremonies in other churches than the obituary chapel, this chapel being under the administration of the said wardens. The council thereupon passed the ordinances, for the violation of which the defendant is sued.
'The case was presented here on the same pleadings as in the court below, but the plaintiff's counsel introduced evidence to prove several facts; this evidence was in substance as follows:
'The Right Reverend A. Blanc, Bishop of New Orleans, testified that the dogmas of the Roman Catholic religion did not require that the dead should be brought to a church, in order that the funeral ceremonies should be performed over them; that this was a matter of discipline only; that the witness, as bishop of this diocese, had authorized the clergy to leave the cathedral, and not to officiate at funeral rites at the obituary chapel, and that these ceremonies might be celebrated at the house where the dead person expired, or at any other place designated by the bishop.
'The Reverend C. Maenhant, curate of the parish of St. Louis, testified, that he was the curate of said parish, and in that capacity he had given orders for no funeral service to be said at the obituary chapel; that, from the situation of the clergy with regard to the wardens, these funeral services could not, with propriety, be performed at said chapel; that he had been several times applied to, by persons who wished these ceremonies celebrated over the dead bodies of their friends or relatives at the obituary chapel, but he had replied that, under present circumstances, these ceremonies would not be performed at that place, but at the chapel of St. Augustin, or in the house where the deceased person was lying, at the choice of the relatives.
'Cross-examined.—This witness testified, that the St. Augustin chapel was, in his opinion, as conveniently situated for these purposes as the obituary chapel; that, in the funeral office, there is nothing calculated to disturb the public peace, nothing contrary to morals, and that the greatest decency is always observed in these mortuary rites.
'The Reverend Jacques Lesne testified, that he is the priest employed as chaplain at the obituary chapel; that he is entitled to no remuneration, besides what he receives from the church-wardens, for attending at the chapel, to bless the bodies of the dead which are brought there; that he does not celebrate funeral obsequies with that pomp which is given to them in special cases, but he continues, with the permission of the bishop, to read the office of the dead, whenever required, at the obituary chapel, as he did previous to the departure of the clergy from the cathedral; that he is not permitted to leave the chapel to accompany funerals to the cemetery.
'Cross-examined.—He said, there is nothing immoral or contrary to the public tranquillity in the prayers which are said at funerals.
'Messrs. Jos e Fernandez, Bernard Turpin, Anthony Fernandez, and Joseph G enois, proved that, for fifteen years past, the funeral service has been performed at the obituary chapel, only that this chapel is the best situated for this purpose, and that nothing disorderly ever occurred there.
'Mr. A. Fernandez, cross-examined, added that he had never known of the occurrence of any disturbance of the public peace, during the ceremonies as the St. Augustin chapel, but he had heard a great deal of complaint about it; and that, being a native of New Orleans, and having almost constantly resided here, he has never seen or heard of the performance of funeral rites at any of the Protestant churches.
'The Honorable Paul Bertus, recorder of Municipality No. 1, proved, that having had the misfortune to lose his sister-in-law, he desired that the funeral solemnities should have been celebrated at the obituary chapel; but that the clergy had left him no choice but between the St. Augustin chapel and the mortuary house, and that he determined upon the latter place.
'The following resolutions, passed by the church-wardens of the parish of St. Louis, were next introduced:
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