Fernandez v. Alford

• Citation: 203 La. 111,13 So.2d 483
• Decision Date: 12 April 1943
• Docket Number: 36893.
• Court: Supreme Court of Louisiana
• Parties: FERNANDEZ v. ALFORD et al.

13 So.2d 483

203 La. 111

FERNANDEZ v. ALFORD et al.

No. 36893.

Supreme Court of Louisiana

April 12, 1943

[Copyrighted Material Omitted]

E. M. Heath, of New Orleans, for appellant.

Sam Monk Zelden and John J. Finnorn, both of New Orleans, for appellee.

Francis P. Burns, of New Orleans, amicus curiae.

HAMITER Justice.

A judgment ordering the return of three pin-ball machines allegedly owned by him, and granting injunctive relief, is prayed for by plaintiff, Albert E. Fernandez, in this action instituted against Steve Alford and John E. DeArmond, Superintendent and Captain, respectively, of the Department of State Police.

The material allegations of his petition may be summarized as follows:

In the operation of a business known as the Central Coin Machine Company, plaintiff owns certain mechanical devices called pin-ball machines and places them in various establishments in the City of New Orleans under a lease and profit sharing arrangement with the proprietors. While three of his machines were in Al's Place, located at 5323 Franklin Avenue, on August 25, 1942, they were illegally seized and carried away by certain police employees of the Department of State Police, acting under the instructions of its officers, Superintendent Alford and Captain DeArmond. Those officers and the other employees of said department who have threatened to continue to seize his property, have never been requested by the chief executive officer or the chief police officer of the City of New Orleans to function in that city; and their actions are unlawful, arbitrary and discriminatory and in violation of the Louisiana and Federal Constitutions.

Defendants on the return day of the rule requiring them to show cause why a preliminary injunction should not issue, filed numerous exceptions and an answer. One of the exceptions was overruled; the remainder were referred to the merits.

The answer shows that the officers of the Department of State Police seized certain gambling paraphernalia in Al's Place, including pin-ball machines, and delivered it to the proper municipal officers to be held as evidence in the case pending against Alfred Saucier who was arrested. Also, it admits that neither the chief executive officer nor the chief police officer of New Orleans requested the State Department to function in that city; and it declares that the seizing operations were conducted under orders of the Governor of Louisiana.

A trial of the rule was had on affidavits; and it resulted in a judgment ordering 'that the Rule be made absolute, and, accordingly, that a preliminary Writ of Injunction issue herein enjoining and restraining Steve Alford, Superintendent of the Department of State Police, and John E. DeArmond, Captain of the Department of State Police, and/or each of them, and the police employees of the Department of State Police acting with and/or under their authority and instructions, from holding themselves out and/or from acting, functioning and operating as Police and Peace Officers in the City of New Orleans insofar as such acts, functions and operations relate to or are connected with the person and/or property of Albert E. Fernandez and/or his lessees, and/or the business owned and operated by said Fernandez known as the Central Coin Machine Company, and from in any way interfering with or molesting said Albert E. Fernandez, and/or his lessees and/or his business known as the Central Coin Machine Company, upon the Plaintiff, Albert E. Fernandez, furnishing bond according to law, in the sum of Five Hundred ($500.00) Dollars.'

Defendants appealed from that judgment.

It is unnecessary for us to pass upon the various exceptions filed by defendants in view of the conclusion that we have reached and hereinafter announce.

Superintendent Alford of the Department of State Police, as shown by his affidavit and pursuant to an order from the Governor of Louisiana, instructed members of his department 'to look around the City of New Orleans and wherever they found violation of the Gambling Laws to arrest the offenders, place them in the City Precinct Jails, take whatever property seized as evidence, and turn over to the proper municipal police authorities, and to otherwise cooperate with the Police Department of the City of New Orleans.'

The written order of the Governor, to which reference is above made, reads as follows:

'Whereas, complaints have been received by me that a state of lawlessness exists in the City of New Orleans, and particularly that commercialized gambling is running rampant in that municipality, and that in spite of appeals to the local law enforcing agencies and officials, no effort is being made to correct the condition nor to suppress said gambling; and

'Whereas, these complaints come from persons of undoubted sincerity and integrity and of high standing and character, such as the New Orleans Ministerial Union United States Army Officials, civic organizations and private citizens, so that there is no reason to doubt the existence of the conditions embodied in said complaints,

'Now, Therefore, by virtue of the power vested in me by law and particularly by Act No. 94 of 1936, as amended, I Hereby Direct and Order the Director of Public Safety, who is ex-officio Superintendent of State Police, from this date forward until further ordered, to act within the City of New Orleans, particularly for the purpose of suppressing commercialized gambling therein.

'In Testimony Whereof, I sign this order at the City of Baton Rouge, Louisiana, this 13th day of July, A. D. 1942.

'(Signed) Sam H. Jones

'Governor of Louisiana.'

Acting under the instructions of Superintendent Alford, Captain DeArmond, together with other employees of the Department of State Police, went into the City of New Orleans and caused to be arrested numerous persons whom he observed violating the gambling laws of the State of Louisiana. One of those offenders was Alfred Saucier, the owner and operator of Al's Place where there were located the three pin-ball machines allegedly being used for gambling purposes. The machines were seized and turned over to the property clerk of the New Orleans Police Department to be held as evidence.

The arrest of Saucier was made by the municipal police, and he was charged with violating Article 90 of the Louisiana Criminal Code of 1942 relative to gambling. This article, found in said Code under 'Chapter 2. Offenses Affecting General Morality', provides:

'Gambling is the intentional conducting, or directly assisting in the conducting, as a business, of any game, contest, lottery, or contrivance whereby a person risks the loss of anything of value in order to realize a profit.

'Whoever commits the crime of gambling shall be fined not more than five hundred dollars, or imprisoned for not more than one year, or both.'

Subsequently, the District Attorney for the Parish of Orleans, acting upon Captain DeArmond's affidavit, filed in the criminal district court of that parish a bill of information charging Alfred Saucier with the commission of the mentioned offense.

Act No. 94 of 1936, as its title shows, creates the Department of State Police and provides for its operation.

According to Section 16, as amended by Act 113 of 1940, the police employees of the department are required 'to prevent and detect crime, to apprehend criminals, to enforce the criminal and traffic laws of the State, and to perform such other related duties as may be imposed upon them by the Legislature, and to this end, police employees of the department shall be peace officers and shall have in any part of the State the same powers with respect to criminal matters and the enforcement of the law relating thereto as sheriffs, constables, and police officers have in their respective jurisdictions'. But such duties are subject to the provisions and restrictions of Sections 22 and 23 of the statute, hereinafter quoted.

Those employees, under Section 20, must cooperate with Federal authorities and with other police forces and State departments; and the superintendent may, when requested to do so, assist the chief police officer of any local government unit in the state in conducting criminal investigations.

Sections 22 and 23 provide restrictions with reference to their operations within municipalities, and read:

'Section 22. The police employees of the Department shall not be used or called upon for service within any municipality in any industrial dispute unless actual violence has occurred therein and then only either by order of the Governor or on the request of the chief executive officer of the municipality wherein the dispute has occurred, if such request is approved by the Governor. The restrictions on the actions of the police employees of the Department contained in this section shall not apply in the case of a municipality which has elected to operate under a contract pursuant to Section 24 hereof.

'Section 23. The police employees of the Department shall not act within the limits of any incorporated municipality which maintains a police force except (1) when in hot pursuit of an offender or suspected offender; or (2) when in search of an offender or suspected offender wanted for a crime committed outside of the limits of the municipality or when interviewing or seeking to interview a witness or a supposed witness to such a crime; or (3) when requested to act by the chief executive officer of the municipality in question or its chief police officer, as provided under Section 20; or (4) when ordered by the Governor to act within the municipality in question. The restrictions contained in this section on the actions of police employees of the Department shall not apply in the case of a municipality which has elected...