City of New Orleans v. Collins

• Decision Date: 01 March 1900
• Docket Number: 13,408
• Citation: 52 La.Ann. 973,27 So. 532
• Court: Louisiana Supreme Court
• Parties: THE CITY OF NEW ORLEANS v. NELS A. COLLINS

27 So. 532

52 La.Ann. 973

THE CITY OF NEW ORLEANS v. NELS A. COLLINS

No. 13,408

Supreme Court of Louisiana

March 1, 1900

APPEAL from the First Recorder's Court, City of New Orleans -- Finnegan, J.

James J. McLoughlin, Assistant City Attorney, and Samuel L Gilmore, City Attorney, for Plaintiff, Appellee.

E Howard McCaleb and Arthur B. Leopold, for Defendant Appellant.

OPINION

NICHOLLS C.J.

STATEMENT OF THE CASE.

Defendant is appellant from a judgment condemning him to pay a fine of twenty-five dollars or be imprisoned twenty-five days, in the Parish Prison, on a complaint that he had violated Ordinance No. 15,829, C. S., relative to slot machines.

The affidavit upon which the judgment was based averred that on the 4th day of January, 1900, at about 1:45 o'clock p. m., on Gravier street, between and Baronne streets in this district and city, one Nels A. Collins, did then and there violate Ordinance 15,829 relative to operating a slot machine at his place of business, corner of Gravier and Baronne.

All against the peace and dignity of the city of New Orleans.

The ordinance referred to is as follows:

"Be it ordained by the City Council of the city of New Orleans, that, from and after the promulgation of this ordinance, it shall be unlawful for any person, persons, or firm, to engage in the operation of any slot machine either as keeper or owner or player thereof, or any other instrument or device where the prize or reward given or to be given is money, merchandise, or checks redeemable in money, or an order to any third person for money or merchandize.

"Be it further ordained, that whosoever shall violate any of the provisions of this ordinance shall upon conviction before the Recorder in whose jurisdiction the offense is committed, be fined in the sum not less than $ 5.00 nor more than $ 25.00, and in default of payment of said fine shall suffer imprisonment for not more than thirty days or shall suffer both fine and imprisonment at the discretion of the Recorder".

Defendant filed the following demurrer to the complaint:

"1. That Ordinance No. 15,829, C. S., adopted by the city of New Orleans, which appearer is charged with having violated, is illegal, unreasonable, oppressive, null and void.

"2. That the Act of the General Assembly of the State of Louisiana, No. 45 of 1896, known as the New City Charter, did not authorize the Common Council of the city of New Orleans to enact the said Ordinance No. 15,829, C. S., which this appearer is charged to have violated, and said ordinance is therefore illegal and in excess of the powers conferred upon the said Council by the General Assembly of the State of Louisiana.

"3. That said ordinance, No. 15,829, C. S., is inconsistent with and violative of Act No. 57 approved July 8th, 1898, of the Acts of the General Assembly of the State of Louisiana, entitled -- 'An Act to prohibit gambling with slot machines for money prizes and to prohibit minors from playing same for either stock or money, and providing penalties therefor', and said ordinance is inconsistent with and violative of the policy of the State of Louisiana as enunciated and declared in said act.

"4. That said ordinance, No. 15,829, C. S., is repugnant to Section 4 of Act No. 57, approved July 8, 1898, a general law of the State of Louisiana, and is therefore ipso facto void.

"5. That by Section 4 of said Act No. 57 of 1898, the use of slot machines where prizes are stock in trade in regular licensed establishments and under the restrictions as to minors imposed by the said statute, is not prohibited, but on the contrary is specially permitted and authorized.

"6. That the said ordinance of the city of New Orleans, No. 15,829, C. S., makes the use of said slot machines where prizes are stock in trade in regular licensed establishments penal, and inflicts a punishment for the use thereof in the manner and form permitted by the aforesaid statute of the State of Louisiana.

"7. That the city of New Orleans, the creature of the State of Louisiana, is without right, power or authority to impose a penalty or inflict punishment for an act authorized by the law of the State of Louisiana, its creator.

"8. That by the enactment of said ordinance, No. 15,829, C.S., the city of New Orleans attempts to repeal a general statute of the State of Louisiana, in full force and effect at the time of the adoption of said illegal ordinance. That the city of New Orleans through its Common Council can not disregard or set aside by ordinance a valid subsisting law of the State.

"9. That the city of New Orleans is without power under its charter to pass the said Ordinance No. 15,829, C. S., repealing and nullifying a statute passed by the General Assembly of the State, Act No. 57 of 1898, and said ordinance is therefore ultra vires and void.

"10. That said ordinance violates the Constitution of the United States, especially the 14th amendment thereof, in that it denies to this defendant and accused the equal protection of the laws by prohibiting the use of slot machines where the prizes are stock in trade, in regular licensed establishments and under the restrictions contained in Act No. 57, approved July 8th, 1898, in the city of New Orleans, and making said use a penal offense, whereas said machines may be used with impunity in regular licensed establishments where the prizes are stock in trade in other parishes and cities of this State. That the discrimination, inequality and ununiformity thus made against those residing and carrying on business in the city of New Orleans, violates the provisions of the Constitution of the United States and of this State."

The demurrer having been overruled, the Recorder after hearing evidence in the case rendered the judgment from which defendant appealed.

Act No. 57 of 1898, to which reference is made in the pleadings, is an Act entitled -- "An Act to prohibit gambling with slot machines for money prizes and to prohibit minors from playing same for either stock or money, and providing penalties therefor."

By its first section it was enacted:

"That whoever shall engage in gambling in slot machines with money or representatives of money, where the prize or return is to be money, or representatives of money or checks which are to be redeemed for money, shall upon conviction thereof, be fined in the sum of not less than $ 25.00 nor more than $ 200.00, or be imprisoned for not less than thirty days, nor more than ninety days, or both, at the discretion of the Court.

"Sec. 2. Be it further enacted, etc., That any owner, lessee, tenant, or proprietor of any premises or building, who shall have or permit in or about same, or connected therewith, any slot machine operated in violation of Section 1 of this Act, shall be, upon conviction thereof, fined not less than $ 25.00, or more than $ 200.00, or be imprisoned for not less than thirty days, nor more than ninety days, or both, at the discretion of the court.

"Sec. 3. Be it further enacted, etc., That any owner or proprietor of any slot machine or persons operating same, who shall permit any minor to play same either for money or stock or merchandise, shall be guilty of a misdemeanor and shall upon conviction thereof, be fined not less than twenty-five dollars nor more than one hundred, or suffer imprisonment not less than thirty days nor more than ninety days.

"Sec. 4. Be it further enacted, etc., That nothing in this Act shall be construed as prohibiting the use of said machines, where the prizes are stock in trade, in regular licensed establishments and under the foregoing restrictions as to minors".

It will be seen that defendant's exception or demurrer is directed exclusively against the ordinance which he is charged with having violated, and that no objection is made either to the affidavit embodying the charge or to the proceedings in the Recorder's Court, and that the demurrer is levelled not at a part of the ordinance but at the whole of it.

If any portion of the ordinance is legal and constitutional, the attack made against it as a whole must fail. (People's State Bank vs. St. Landry State Bank, 50 Annual, 528.)

As the General Assembly by Act No. 57 of 1898, prohibited gambling with slot machines for money prizes, and constituted such an act a misdemeanor, it can not be successfully claimed that to the extent at least that the ordinance attacked prohibits the very same act, it is illegal or beyond the powers delegated to the city of New Orleans.

In State vs. Fourcade, 45 Annual, 718, this court held that the Legislature might delegate to municipal corporations power to adopt and enforce ordinances on matters of special local importance, though general statutes exist relating to the same subject. That the same act might constitute a crime against the public law of the State, and also a petty offense against a municipal regulation.

We do not understand appellant to contest the correctness of that proposition and therefore, in so far as he may have been guilty of gambling with a slot machine for a money prize, that he could not have been legally fined and in default of payment, imprisoned under the city's ordinances.

The affidavit on which the proceedings in the Recorder's Court were grounded, is exceedingly objectionable, as we stated affidavits of a similar kind to be in City vs. Kientz, recently decided, 52 Ann., p. , for we are forced to look to the evidence instead of to the complaint to see what particular branch of the ordinance the accused is charged with having violated.

The evidence shows that the defendant is engaged in the cigar business at the corner of Baronne street and Gravier street in New Orleans, having a license to carry on that business. He had one of these slot machines which...