City of New Orleans v. Grosch

• Decision Date: 11 December 1950
• Docket Number: No. 19669,19669
• Citation: 49 So.2d 435
• Parties: CITY OF NEW ORLEANS et al. v. GROSCH et al.
• Court: Court of Appeal of Louisiana — District of US

Page 435

49 So.2d 435

CITY OF NEW ORLEANS et al. v. GROSCH et al.

No. 19669.

Court of Appeal of Louisiana, Orleans.

Dec. 11, 1950.

Henry B. Curtis and Alvin J. Liska, New Orleans, for plaintiffs-appellants.

Michael E. Culligan, Jr., New Orleans, for defendants-appellees.

JANVIER, Judge.

The City of New Orleans, acting through its Mayor and its Commissioner of Public Buildings, seeks to enjoin the Criminal Sheriff of the Parish of Orleans and his Chief Deputy from interfering with the Police Department of the City of New Orleans in the operation of a 'Central Lockup' in Wing D of the building, situated in New Orleans, in the square bounded by Tulane Avenue, Broad, White and Gravier Streets, and known as the Criminal Courts and Jail Building.

Defendants answering the petition for injunction, admit that the title to the building in question is in the City of New Orleans, and aver that Wing D of the building, which the City now claims is the 'Central Lockup', since its erection, for twenty-two years, has been known and recognized as the House of Detention for the City of New Orleans.

Defendants further aver that Act No. 23 of the Second Extraordinary Session of the Legislature of Louisiana of 1950 'clearly and unequivocally makes your respondent, the Criminal Sheriff for the Parish of Orleans, the official keeper of the House of Detention * * *.'

Defendants further aver that after the passage of the said Act, Act. No. 23 of the Second Extraordinary Session of 1950, the City of New Orleans, in an effort to avoid the effect thereof, designated Wing D of the said jail building as a 'Central Lockup' and, contending that that wing no longer constituted the House of Detention, refused to surrender it to the Criminal Sheriff in accordance with the requirements of the said statute.

Defendants deny most of the essential allegations of the petition for injunction filed by the City of New Orleans and, in reconvention, pray that a writ of mandamus issue 'directed to the City of New Orleans, commanding the Mayor, the Commission Council and the Superintendent of Police to cease and desist in the operating of a 'central lockup' in Wing D of the Criminal Courts and jail building located in the First District in Square 602, bounded by Tulane, Broad, White and Gravier Streets, and that they be ordered to turn over to the Criminal Sheriff for the Parish of Orleans the care, custody and control, maintenance and management of all city prisoners confined by judgment of sentence of the Municipal Court for the City of New Orleans, or prisoners incarcerated therein in lieu of bail bond while awaiting trial, and that they be ordered to surrender the full, complete and entire building and premises hereinbefore described, together with the equipment and appurtenances thereon, and all books, records, objects and other property which is a part of the House of Detention or City Jail, * * *.'

Upon the termination of the trial but before judgment had been rendered the Court, on stipulation of counsel, permitted the case to be reopened in order that the City of New Orleans might be permitted to amend its petition by dictating into the record a plea 'contesting the constitutionality of the statute', Act No. 23 of the Second Extraordinary Session of 1950. Thereupon counsel for the City of New Orleans dictated into the record an amendment of the original petition of the City of New Orleans, which amendment reads as follows:

'I. Petition of the City of New Orleans through its Mayor, DeLesseps S. Morrison, and Victor H. Schiro, Commissioner, with leave of this Honorable Court, and by stipulation of both parties, does hereby file its amended and supplemental petition.

'II. Petitioner realleges all of the allegations contained in the original petition and particularly Article I through VIII inclusive, and in the alternative does hereby allege that Act 23 of the Second Extraordinary Session is unconstitutional for the following reasons, to-wit:

'1). That it violates Article 1, Section 2 of the State Constitution; Article 1, Section 2 being due process and just compensation clauses; in that it takes property away from the City of New Orleans, and in effect transfers it to a parish institution without just compensation and without following provisions of the articles concerning the expropriation of property for public use.

'2). a. It violates Article 3, Section 16 of the State Constitution concerning acts being confined to one subject; in that the subject of Act 23 of the Second Extraordinary Session of 1950 does not refer by number to Section 702 of Title 15 referring to the governing authority of the jails, and consequently embraces more than one object without having a title indicative of such object, or a number referring to the section of the revised statute that it intends to amend.

'b. That, in effect, Act 23 of the Second Extraordinary Session of 1950 would amend Act 351 of 1948 as it is referred to and reported in Title 33 of the revised statutes, in that it does not contain a title indicative of having amended this particular object or subject.

'3). That it violates Article 3, Section 17, of the State Constitution, in that it attempts to amend Act 351 of 1948 as restated in the Title 33 of the Revised Code, and also attempts to amend Section 702 of Title 15 of the Revised Code without specifically referring to Section 702, Title 15 of the Revised Code, or referring to Act 351 of 1948 as reported in revised statutes Title 33.

'4). That it is unconstitutional, in that it violates Article 4, Section 5, of the State Constitution, which section refers to the repealing acts of local and special laws, in that Act 23 of the Second Extraordinary Session of 1950 attempts to amend and reenact Section 702 of Title 15 of the revised statutes, which is a general law, which is contrary to the provisions of Article 4, Section 5, which says that no local or special law may be passed to amend a general law, and that Section 702 of Title 15, of the revised statutes refers to the governing authorities of all of the parishes, which is general in nature. And,

'5). That it violates the Fourteenth Amendment, Paragraph 1, of the United States Constitution, in that it attempts to take away from the City of New Orleans property without due process of law and without following the expropriation proceedings set up for the taking of property.'

The District Court refused to grant the injunction prayed for by the City of New Orleans, and dismissed the suit of the City and rendered judgment of mandamus in favor of defendants as prayed for. The City of New Orleans has appealed.

When the matter was called for hearing in this Court, counsel for the City of New Orleans filed a further plea attacking the constitutionality of the statute relied upon by defendants, Act No. 23 of the Second Extraordinary Session of 1950, and on a ground which had not been urged in the court a qua. That plea reads as follows:

'Now come the City of New Orleans, deLesseps S. Morrison, Mayor of the City of New Orleans, and Victor H. Schiro, Commissioner of Public Parks and Buildings of the City of New Orleans, and especially plead that Act 23 of the Second Extra Session of 1950 is unconstitutional, null and void for the following, among other reasons, to-wit:

"Section 20 of Article XIV of the Constitution as amended by Act 551 of 1950, which was ratified by the voters of the State of Louisiana at the election of November 7, 1950, reads in part as follows:

"'The Legislature is hereby prohibited subsequent to the Regular Session of 1950, from amending, modifying or repealing the herein established or future home rule charters of the City of New Orleans other than by general law which uniformly applies, both in terms and in effect, to all cities of the State.'"

'Now, appears show that Act 23 of the Second Extra Session was passed subsequent to the Regular Session of 1950, and that said Act 23 is not a general law applying to all cities in Louisiana in terms and effect.

'Appearers further show that if Act 23 of the Second Extra Session of 1950 is given the effect which defendant Grosch contends should be given to it and which was the interpretation placed on said Act by the Civil District Court for the Parish of Orleans, then the Act amends, modifies, or repeals Section 8, Paragraph 15 of the City Charter, which is Act 159 of 1912, as amended, and which section reads as follows:

"Section 8. The Commission Council shall also have power: * * * (15) To establish jails, houses of refuge, reformation and correction and to make regulations for their government; * * *" 'Appearers further show the although they attack the constitutionality of Act 23 of the Second Extra Session of 1950 in their proceedings in the District Court, they did not specifically raise the question of constitutionality herein raised, because at the time that this case was in the District Court, the constitutional amendment proposed in Act 551 of 1950 had not been ratified by the electors of the State of Louisiana. Appearers now show that although the official results of the election have not as yet been promulgated, the unofficial results as published in the daily newspapers show that the amendment to the Constitution was ratified, and that said amendment is now the law of Louisiana.

'Wherefore, appearers pray that this plea of unconstitutionality, together with the other pleas of unconstitutionality hereinafter raised, be considered by the Court, and that in the event Act 23 of the Second Extra Session of 1950 be given the interpretation urged by defendant Grosch, in that said act be declared unconstitutional, null and void for the reasons urged by appears.'

Counsel, in filing the said plea on November 13, 1950, which was the day on which the case was called for argument before this Court, contended that although the said constitutional amendment had not then been promulgated, nevertheless the result of the...