Israel v. City of New Orleans
| Decision Date | 20 May 1912 |
| Docket Number | 18,598 |
| Citation | 58 So. 850,130 La. 980 |
| Court | Louisiana Supreme Court |
| Parties | ISRAEL v. CITY OF NEW ORLEANS et al |
Appeal from Civil District Court, Parish of Orleans; E. K. Skinner Judge.
Action by Jacob Israel against the City of New Orleans and others to enjoin the enforcement of an order. From a judgment for defendants, plaintiff appeals. Judgment set aside, and injunction ordered to issue.
Arthur B. Leopold, for appellant.
I. D Moore, City Atty., and A. M. Buchmann, Asst. City Atty., for appellees.
In 1902 or 1903 the plaintiff purchased 19 lots of ground in square bounded by Bienville, Murat, Conti, and Olympic streets in this city, and converted same into a summer amusement park for colored people, and has been operating this park ever since. This park is provided with the usual equipment of like places -- promenade walks, flying horses, moving pictures, an auditorium or theater, an open pavilion for dancing and concerts, etc. To the question:
"What was the condition of the ground when you bought it?"
He answered:
Since then, however, the neighborhood has been more or less built up, and some of the neighbors have complained to the committee of public order of the city council of the manner in which the place is being conducted, and the mayor has refused to detail any policeman for the place, with the result that the place has had to be closed up; since, by city ordinance, such places cannot be operated without a detail of police.
The action of the mayor was based upon an opinion of the city attorney to the effect that the dancing pavilion in the park was a "dance hall" within the meaning of section 21 of the City Charter (Act No. 45 of 1896), Act No. 99 of 1904, providing that:
"The city council shall not grant any privilege for the opening of any barroom, saloon, or dance hall, except upon the written consent of a majority of the bona fide property holders within three hundred feet measured along the street front of the proposed location of such barroom, saloon, concert saloon or dance hall."
The said opinion of the city attorney, and the letter of instructions of the mayor to the inspector of police founded upon it, are in the record, and show that the ground of the refusal to allow a detail of police was that the plaintiff had not obtained the consent of a majority of the property owners within 300 feet of the pavilion.
Plaintiff alleges that his park is not a "dance hall" within the meaning of the said provision of the city charter, and that it has always been conducted in the most orderly manner, and that other parks of the same kind, both for whites and colored, are allowed to be operated in the city without such requirement of obtaining the consent of neighboring owners, and that this refusal to allow his park to go on is an illegal and unconstitutional discrimination against him, and a depriving him of his property; and he prays that the mayor and the inspector of police be enjoined from enforcing the said order.
The answer of the mayor and the inspector of police is to the effect that there has been no refusal to allow plaintiff's park to go on in all of its features except that of the dancing pavilion, which is a "dance hall" such as cannot lawfully be operated without first obtaining the consent of a majority of the neighbors within 300 feet.
The evidence took a wide range. An attempt was made by the defense to show that liquors or beer are sold at the park. Why make such a showing, when the sole issue in the case is as to whether the dancing pavilion is or not a "dance hall" within the meaning of the above-quoted provision of the city charter, we cannot imagine. The attempt failed however, except to this extent that the plaintiff admits that on week days his park is frequently leased to benevolent and other associations for picnics, and that on such occasions beer is sold, but by permission of the city authorities. Attempt was also made to prove that the neighbors were disturbed by the loud talk and shouts and obscene language of the visitors to the park, especially in going to and returning from the park. Again, we are at a loss to conceive why attempt to prove matters outside of the issue. Not only is it not alleged that plaintiff's place is a nuisance, but the answer contains an express disclaimer of intention to make any such allegation. As a matter of fact, the plaintiff proved that the place had always been conducted in most orderly fashion, as, indeed, was conclusively shown by the fact that in its whole history there had never been a single arrest made within its precincts. There is evidence that while going to or coming from the place the visitors have...
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