City of New Orleans v. Lenfant

• Decision Date: 09 May 1910
• Docket Number: 17,995
• Court: Louisiana Supreme Court
• Parties: CITY OF NEW ORLEANS v. LENFANT et al

52 So. 575

126 La. 455

CITY OF NEW ORLEANS v. LENFANT et al

No. 17,995

Supreme Court of Louisiana

May 9, 1910

Rehearing Denied June 6, 1910.

Appeal from Second Recorder's Court, City of New Orleans Charles J. Gauthreaux, Recorder.

Joseph Lenfant and others were convicted of violating an ordinance of the City of New Orleans, and appeal. Reversed and defendants discharged.

Denegre & Blair and Victor Leovy, for appellants.

I. D Moore, City Atty., and John J. Reilley, Asst. City Atty., for appellee.

MONROE J. PROVOSTY, J., takes no part, not having heard the argument.

OPINION

MONROE, J.

Statement of the Case.

The defendants in this case are prosecuted under an affidavit which charges:

"That on or about the 25th day of October, 1909, on Elysian Fields street, between Dauphine and Marais streets, * * * one Jos. Lenfant, Jos. Kinkaid, Jno. McGuire, and Charles Marshall, each, employes and officers, did then and there willfully viol. Ord. 6,057 N. C. S., and particularly sects. 1, 2, 3, and 4, of said Ord. 6,057, N. C. S. All against the peace and dignity of the city of New Orleans."

By which we understand is meant that the parties named, acting as officers and agents, violated ordinance No. 6,057 new council series, which ordinance reads and provides as follows:

"Whereas, numerous complaints have been made, and are being made, in regard to the parking of cars by the Louisville & Nashville Railroad Company and the Southern Pacific Railroad Company, on Elysian Fields street, to the great discomfort of persons living on that street, and with increase of danger to all persons crossing Elysian Fields street; and, whereas, these complaints tend to show that such use of the neutral ground in the middle of Elysian Fields street by such railroad companies is wholly unnecessary on the part of said companies and has led to many serious accidents, and to the depreciation of property on that street; and, whereas, the operation of said companies, in parking their cars and making up their trains, can be, and ought to be, carried on off Elysian Fields street; now, therefore:

"Section 1. * * * That the Louisville & Nashville Railroad Company, the Pontchartrain Railroad Company, the Southern Pacific Railroad Company, and all other railroad companies which have hitherto used the neutral ground of Elysian Fields street for parking their cars and for carrying on the work of making up trains, watering engines and doing other similar yard work, be, and they are, hereby, prohibited from using said neutral ground for such purposes.

"Sec. 2. * * * That said neutral ground shall not be made use of, at any point, for the purpose of cleaning cars or locomotives or blowing out or watering engines, or cleaning furnaces, or switching cars or making up trains.

"Sec. 3. * * * That the said railroads shall, within thirty days after the passage of this ordinance, keep and operate gates on both sides of Elysian Fields street, at right angles, and it shall be the duty of the gatemen operating said gates to notify, by signals, all street cars and vehicles crossing said street of the approach of trains, and the fact that said gates are open shall be deemed and treated as notice justifying vehicles in crossing said street, without further special notice from the gatekeeper. Said gates shall be operated so as to interfere as little as possible with traffic and travel across Elysian Fields street.

"Sec. 4. * * * That all cars moving through said street shall, within thirty days after the passage of this ordinance, be provided with modern and efficient spark arresters and smoke consumers.

"Sec. 5. * * * That any officer, agent, or employe of any railroad company, violating any of the provisions of this ordinance, shall, upon conviction * * * be condemned to pay a fine of not more than $ 25, or imprisonment for not more than 30 days, or both, in the discretion of the recorder, each day that any of the provisions of this ordinance shall be violated constituting a separate offense."

Defendants filed a plea, in which they allege that the ordinance relied on by the prosecution is unconstitutional, for the reasons: That it contravenes various specified articles of the state and federal Constitutions, in that, if enforced, it will impair the obligations of contracts, divest vested rights, take or damage private property, without compensation previously made, operate as a regulation of interstate commerce, deprive defendants and the corporations named of their liberty and property without due process of law, and deprive them of the equal protection of the law; and that it is illegal because the things forbidden by it are legal and proper, and those commanded wholly unreasonable and ultra vires of the city of New Orleans. They further allege that the so-called "neutral ground" is a strip of land, say, 53 feet wide, separating the two roadways of Elysian Fields street, which is, and for many years has been, the private property of the Pontchartrain Railroad Company, having been purchased by it from Bernard Marigny in 1830, and the title to which, as so acquired, has been adjudicated upon and affirmed by the Supreme Court of this state in a litigation, to which the city of New Orleans was a party, and the record of which is annexed to the plea; that the railroad companies named in the ordinance, other than the Pontchartrain, are using the property, under the authority of the latter, and defendants are using it under the authority of, and contracts with, said three companies; that the city of New Orleans brought a civil suit alleging that the said strip of land had been dedicated to public use, but, upon the filing of exceptions by the Pontchartrain Company, resorted to the present proceeding, to drive it, and those holding under it, off therefrom. Defendants annex to their plea the petition in said suit, and various titles, ordinances, contracts, etc., as establishing the facts alleged, and they sum up their position by averring that the different sections of the ordinance in question are unconstitutional, illegal, and unreasonable: (Section 1) Because it prohibits the Pontchartrain Railroad Company and the companies and persons acting under its authority, including defendants, from using the alleged neutral ground for parking cars, making up trains, watering engines, and other "yard work," all of which is necessary for the purposes of the traffic, interstate and intrastate, in which said companies and persons are engaged, and none of which constitute nuisances; (section 2) because it prohibits said parties from using the alleged neutral ground, at any point for cleaning cars or locomotives, or blowing out or watering engines or furnaces, or switching cars, or making up trains, none of which are nuisances; (section 3) because it imposes upon said parties the burden of erecting gates and maintaining watchmen, day and night, along the whole length of Elysian Fields street, including sparsely settled localities, where there is little traffic by day, and none by night, which is unnecessary and unreasonable; (section 4) because it fails to define modern and effective smoke consumers and spark arresters, and there are no smoke consumers for locomotives.

Counsel for the prosecutor objected to the plea, in so far as it sets up the title of the Pontchartrain Railroad Company, and objected to the documents annexed thereto, in support of said title, and the objections, as also an objection to the entire plea, having been sustained, defendants took their bills of exception. Bills were also taken to the exclusion of the documents referred to, when they were offered in evidence; to the exclusion of testimony offered to show the cost of erecting and maintaining gates between Claiborne street and the lake; and to the refusal of the recorder to inform defendants, after he had found them guilty, whether they were convicted under one, or another, or all, of the sections of the ordinance.

Opinion.

The appellate jurisdiction of this court, which is here invoked, "extends to all cases in which the constitutionality, or legality, of * * * any fine, forfeiture, or penalty, imposed by a municipal corporation, shall be in contestation; * * * in such case," says the Constitution, "the appeal, on the law and the facts, shall be directly from the court in which the case originated to the Supreme Court." Const. art. 85. Under this grant, the inquiry into the facts of a case, thus made appealable is confined to the facts necessary to the determination of that question. State ex rel. Graffina v. Finnegan, Recorder, 52 La.Ann. 695, 27 So. 564; Louisiana Society, etc., v. Moody, 52 La.Ann. 1815, 28 So. 224; State v. Pearson, 110 La. 398, 34 So. 575.

From a reading of the preamble of the ordinance under consideration it will be seen that its main purpose, as there declared, is to prohibit the "parking" of cars upon the neutral ground of Elysian Fields street, which practice is said to occasion great discomfort to the residents of that street, to be wholly unnecessary, and to have led to many serious accidents and to the depreciation of property. The preamble further declares that the making up of trains on said neutral grounds can, and ought to be, carried on elsewhere, and the text of the ordinance prohibits and penalizes not only the parking of cars, and the making up of trains, but the watering of engines and other similar "yard work," including the cleaning of cars, locomotives, or furnaces, the blowing out of engines, the switching...