Keegan v. Board of Com'rs of Port of New Orleans

• Decision Date: 31 October 1923
• Docket Number: 26310
• Citation: 98 So. 50,154 La. 639
• Parties: KEEGAN et al. v. BOARD OF COM'RS OF PORT OF NEW ORLEANS. In re BOARD OF COM'RS OF PORT OF NEW ORLEANS
• Court: Louisiana Supreme Court

98 So. 50

154 La. 639

KEEGAN et al. v. BOARD OF COM'RS OF PORT OF NEW ORLEANS.

In re BOARD OF COM'RS OF PORT OF NEW ORLEANS

No. 26310

Supreme Court of Louisiana

October 31, 1923

Order and writ of injunction annulled.

Harold A. Moise and Arthur B. Hammond, both of New Orleans, for Board of Com'rs of Port of New Orleans.

Curtis & Hall, of New Orleans, for Keegan and others.

O'NIELL C. J. DAWKINS, J., concurs. LAND, J. dissenting.

OPINION

By the WHOLE COURT.

O'NIELL C. J.

The board of commissioners of the port of New Orleans has invoked the supervisory jurisdiction of this court to set aside an injunction issued by a judge of the civil district court. The order of injunction, and the writ itself, in precise terms forbade the board, and the members thereof, and their agents, police officers, and other servants, to exclude the plaintiffs, Henry Keegan et al., from the public wharves of the port of New Orleans, where ships were being loaded or unloaded, while such work was going on. The writ has been held in abeyance by an order of this court, staying temporarily the proceedings in the civil district court.

The facts on which the order of injunction issued are set forth in the pleadings in the court below. The plaintiffs, 16 in number, are resident taxpayers in the city of New Orleans. Four of them are the Presidents, respectively, of four labor organizations, namely, Stevedores' & Longshoremen's Benevolent Society, Screwmen's Benevolent Association, Longshoremen's Protective Union & Benevolent Association, and Screwmen's Benevolent Association No. 1. Each of the 12 other plaintiffs is a member of one or another of the organizations mentioned. They are all longshoremen or screwmen, and are usually employed by the steamship agents and owners in the port of New Orleans. On the 13th of September -- last month -- the plaintiffs, with the other members of the labor organizations mentioned, went on a strike, in consequence of disagreements and controversies, over wages and working conditions, that had arisen between them, on the one side, and their employers, on the other side, namely, members of the New Orleans Steamship Association, and other steamship agents and owners, operating in the port of New Orleans. On the 18th of September, the strike being yet on, the board of commissioners of the Port of New Orleans issued this order:

"That all persons shall be prohibited from entering or using the public wharves during the present strike unless it be on business in connection with the commerce and navigation of the port."

Having knowledge of this order, the plaintiffs attempted, peaceably, as they allege, to enter upon the docks, and were prevented by the harbor police, employed by the board of commissioners of the port. On the 27th of September, the plaintiffs, some personally and others by their representatives, appeared before the board, at a meeting held in the board's office, and protested against the enforcement of the board's order, forbidding them and any one else -- during the strike -- to enter or use the public wharves otherwise than for business in connection with the commerce or navigation of the port. Their request for a rescission of the order was refused by the board. Eleven days later -- and on the twentieth day after the order complained of had been issued -- plaintiffs filed this suit, praying that the board of commissioners, and the members thereof in their official capacity, and their officers, agents, and employees, should be perpetually enjoined and restrained from further enforcing or attempting to enforce the aforesaid order, and "from interfering with petitioners, in any way whatever, in approaching, entering, going upon, circulating around and through and otherwise exercising their legal rights in and upon, the docks, wharves, sheds, or other public property, under the administration of the said board of port commissioners," etc. Plaintiffs prayed for and obtained a rule upon the board to show cause why the injunction should not issue forthwith, and remain in force pendente lite, on plaintiffs' furnishing such bond and security as the court might order.

Having alleged the facts which we have stated, plaintiffs made the following allegations, which, for the most part, seem to be matters of inference, belief, or opinion, rather then matters of fact, viz.:

"That the board of commissioners of the port of New Orleans, whose control of the public property along the river front is purely administrative, exceeded its power in issuing a police regulation of the character of said order; that nowhere in law or custom can the authority therefor be found; and that the act of issuing and enforcing said order is unwarranted in law, ultra vires, unauthorized, and illegal.

"That, even if the state Legislature had seen fit to invest the said board with power and authority to issue a police regulation such as the aforesaid order (which petitioners deny), there was not and is not the slightest ground or suspicion which would have justified the issuance, or which would justify the enforcement, of such a drastic order; that the issuance of an order similar to the one now complained of has never, in the port's history, been justified as a police measure; nor has it ever before been contemplated.

"That, during the present strike, after the walkout, and before the issuance of the dock board's order, for a period of almost a week, there was, as a result of or growing out of said strike, no violence or breach of the peace, nor any other illegal act of any nature whatsoever, committed or threatened, on property administered by the board of port commissioners, or any other property along the river front; and that, therefore, there was and could have been no reasonable apprehension or suspicion that acts of violence or damage would occur upon the docks or along the river front; and that, therefore, the said order, even if it be not ultra vires (which your petitioners maintain it is), is inspired by favoritism, bias, and prejudice, and is an unfounded, uncalled for, unreasonable, arbitrary, and unwarranted exercise of police power, and is therefore illegal.

"That your petitioners firmly believe, and therefore aver, that, although nominally the said order prohibits the general public from entering upon the river front, in truth and in fact the said order was and is primarily aimed at your petitioners, together with their fellow members of the four striking unions, for the purpose of injuring and harassing your petitioners and their associates, with the object of forcing them to abandon their strike and to submit to the terms and conditions laid down by the steamship owners and agents; and that the said order was issued in furtherance of a policy of favoritism towards the shipping interests, and discrimination against your petitioners and their organizations, by the board of commissioners of the port of New Orleans, for reasons best known to the members of said board."

The petition concludes with an allegation which seems to be somewhat irrelevant, and which is indignantly denied by the board, that, on two occasions, the steam tug Sampson, which was controlled and operated by the board, was used to convey nonunion men and strike breakers to fill the places of employment that had been vacated by the plaintiffs.

They did not disclose, in their petition, the purpose for which they desired to go upon the wharves, or state whether they were going there severally or in a group when they were stopped by the harbor police; neither did they allege that their mission was "on business in connection with the commerce and navigation of the port." All that they alleged in that respect was that they desired to go upon the wharves, and "that your petitioners' desire was and is a lawful one."

In response to the rule to show cause why the injunction should not issue, the board of commissioners pleaded that the allegations of the petition did not set forth a cause or right of action. Having heard argument on the plea, the judge ruled that the allegations of the petition did disclose a cause of action. Thereupon, the board answered, admitting that the order complained of had been issued, and averring that it had been enforced without favor or discrimination, against the steamship agents having no business on the wharves as well as against other persons having no business there. The board denied that there was any intention or desire on the part of any of its members to take sides in the strike, or to favor the steamship owners or agents in any way. The board denied that the wharves and docks were public places, except for the purposes for which they were dedicated; denied that the plaintiffs' purpose in attempting to go upon the wharves during the strike was a lawful purpose; and averred that their purpose and intention was to use the wharves for picketing, to aid them in their controversy with their employers; and that such a use of the wharves would be a private use, would be an impediment to the commerce of the port, and would be unlawful and improper. The board averred that it had the authority, and the duty, in an emergency such as a strike, to prevent the strikers using the wharves for their private or individual purposes, and to prevent any one's using the wharves for any purpose other than the public purpose for which they were dedicated; and that the board was, by the statutes of the state, specifically invested with the police power which the board was exercising, to protect the lives of the board's employees and the property of the state.

The issue thus presented was argued and submitted on the pleadings; whereupon, the court, having taken the matter under consideration, ordered that the injunction should issue,...