City of New Orleans v. Smythe

• Decision Date: 12 February 1906
• Docket Number: 15,850
• Citation: 116 La. 685,41 So. 33
• Court: Louisiana Supreme Court
• Parties: CITY OF NEW ORLEANS v. SMYTHE

41 So. 33

116 La. 685

CITY OF NEW ORLEANS v. SMYTHE

No. 15,850

Supreme Court of Louisiana

February 12, 1906

Rehearing Denied March 26, 1906. See dissenting opinion of MONROE, J., 41 So. 35.

Appeal from First Recorder's Court of City of New Orleans; John Joseph Fogarty, Judge.

Charles Smythe was convicted of setting up a barroom without a permit, and appeals. Affirmed.

Michael Dracos Dimitry, for appellant.

Henry Garland Dupre, Asst. City Atty., for appellee.

LAND J. BREAUX, C.J. and PROVOSTY, J., concur in the decree.

OPINION

LAND J.

Defendant was charged on affidavit in the first recorder's court of the city of New Orleans with violating Ordinance No. 12,636, C. S., relative to setting up and establishing a barroom without a permit from the city council.

The defendant demurred to the affidavit and charge on the ground that said ordinance is "unconstitutional, illegal, null and void, and in violation of articles 2 and 181 of the Constitution of the state of Louisiana, and that said ordinance is arbitrary, discriminatory, and unjust, and deprives appearer of liberty and property without the process of law." This demurrer was overruled, and the case was tried and the defendant was found guilty and sentenced to pay a fine of $ 10, or, in default thereof, to serve 15 days in the parish prison.

Defendant appealed to the Supreme Court and to the criminal district court.

The evidence adduced on the trial was reduced to writing and appears in the transcript, but is not annexed to any bill of exception. Hence this court cannot review the action of the court a qua on such evidence. See State v. Hagan, 45 La.Ann. 840, 12 So. 929; State v. Carr, 111 La. 716, 35 So. 839.

The only questions of law that this court can properly consider on this appeal are such as are raised by the demurrer.

the ordinance was passed in September, 1896, and was expressly authorized by section 21 of the city charter (Act No. 45, p. 55, of 1896), which reads as follows:

"The council shall not grant any privileges for the opening of any bar-room, saloon, concert saloon or dance hall, except upon the written consent of a majority of the bona fide householders or property holders within three hundred feet, measured along the street front, of the proposed location of such bar-room, saloon, concert saloon, or dance hall; and it shall revoke any privilege on the petition of a like number of such persons, any prior license or privilege to the contrary notwithstanding."

The ordinance, in part, reads as follows:

"That hereafter it shall not be lawful for any one to set up or establish any bar-room, saloon, concert saloon, dance hall, beer house or place where liquor is sold at retail by the glass, to be then consumed, without permission of the city council previously applied for in writing, which shall be accompanied by the written consent of a majority of the bona fide property holders within three hundred feet, measured along the street fronts, of the proposed location of such bar-room, saloon, concert hall, dance hall, beer house or place where liquors are sold at retail by the glass," etc.

The second section of the ordinance provides that such consent of the property holders shall be shown by the certificate of the city engineer; and the third authorizes a fee of $ 5 for each certificate.

The fourth section prescribes a penalty for any violation of the provisions of the ordinance, and the last section provides that all privileges hereafter issued under the ordinance shall be revocable at the pleasure of the council.

In City of New Orleans v. Macheca, 112 La. 559, 36 So. 590, this court held that section 21 of Act No. 45, p. 55, of 1896, was a constitutional exercise of a legislative power, and that City Ordinance No. 12,636, passed pursuant to that section, was not illegal as conferring arbitrary powers on the property holders and on the city council. The doctrine of that case is in accord with the recognized general jurisprudence on the same subject-matter, which has been enunciated as follows, viz.:

"It is ordinarily provided by the statutes that before an application for a license to sell intoxicating liquors shall be granted, the applicant must procure the consent or recommendation of a designated number of persons living in the vicinity of the place for which the license is sought; these persons usually being voters of the district, township, or ward in which the proposed saloon is to be located, or residents or taxpayers in such district, township, ward, or city block. The validity of these statutes has been frequently assailed on constitutional grounds, but they have been uniformly upheld as being a valid exercise of the police power. They are not in violation of any clause of the fourteenth amendment. It has also been urged that provisions of this nature are unconstitutional as delegating legislative power to the classes of persons whose consent or...