Koehl v. Judge of Division B of Civil District Court for Parish of Orleans

• Decision Date: 01 December 1893
• Docket Number: 11,419
• Citation: 45 La.Ann. 1488,14 So. 352
• Court: Louisiana Supreme Court
• Parties: JAMES A. KOEHL ET AL. v. JUDGE OF DIVISION B OF CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS

14 So. 352

45 La.Ann. 1488

JAMES A. KOEHL ET AL. v. JUDGE OF DIVISION B OF CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS

No. 11,419

Supreme Court of Louisiana

December 1, 1893

APPLICATION for Mandamus, Prohibition and Certiorari.

Lazarus Moore & Luce and Drolla & Augustin, for the Relators.

E Howard McCaleb, John Q. Flynn and W. B. Lancaster, for Respondents.

OPINION

PARLANGE J.

The relators presented to the judge of Division A of the Civil District Court for the parish of Orleans, a petition in which they averred substantially that they are citizens, tax-payers and property owners in the radius comprised between Canal, Bourbon, Bienville streets and Exchange alley, in New Orleans; that Otto H. Schoenhausen is the proprietor of a concert hall or variety saloon, situated at the corner of Royal and Customhouse streets, in New Orleans, in which concert hall intoxicating liquors are sold; that said Schoenhausen has no legal permit to operate said concert hall, nor has he complied with the municipal ordinance relative thereto, and especially with Ordinance 7012 C. S. in so far as obtaining from the Mayor and City Council the permission to set up a place where liquors are retailed; that certain stated acts of misconduct and certain improprieties are there permitted, and that the noise which comes from said concert hall is of itself an insupportable nuisance; that all of said acts are contrary to law, and subversive of good order and public morals; that in consequence of the operation of said concert hall respectable persons shun the neighborhood after nightfall, thereby causing considerable damage to the present relators and to other persons conducting restaurants, hotels, stores, etc. They alleged irreparable injury to an amount exceeding $ 2500 to each; they prayed for an injunction restraining said Schoenhausen from conducting or operating said concert hall.

The judge of Division A of said Civil District Court granted the injunction on a bond of $ 2000, and the suit was allotted to Division B of said court.

The defendant in the injunction suit excepted that the petition discloses no cause of action, and that the plaintiffs in the suit are without right to stand in judgment and have no authority to represent the State or the city of New Orleans in the premises. The defendant, reserving his exceptions, also answered by a general denial, admitting that he is the owner of the concert saloon in question. He asserted that he had obtained licenses from the city of New Orleans and the State, and a permit from the city of New Orleans prior to the issuance of the injunction; and that therefore said writ could not lawfully issue in advance of trial on the merits to suppress the same as a nuisance. He further asserted that his establishment is situated in that part of New Orleans where such establishments have existed and been carried on for years without let or hindrance from the plaintiffs or others in the vicinity; that plaintiffs are estopped by their laches, silence and inaction, and that they have damaged him in a large amount by their illegal and malicious action.

Subsequently the present relators filed an amended petition in the injunction suit, in which they averred more in detail their causes of complaint, and alleged more fully the injury to their occupations and to the rental value of their property caused by the operation of the concert hall in the manner they described; and they alleged that the concert hall is not only a common public nuisance but also a private nuisance. They alleged that neither the Legislature nor the city of New Orleans has the power to license or permit the conduct of the immoral establishment described by them, or any immoral establishment, and that any act of the Legislature or ordinance of the city of New Orleans authorizing the licensing of such an establishment is unconstitutional. They attacked specially the constitutionality of any act of the General Assembly licensing a concert saloon in which certain dances are performed. They averred that if the Legislature had the right to license such an establishment, Schoenhausen has not obtained the consent of the majority of the property holders and residents within a radius of 300 feet from said concert hall.

The State, through the Attorney General, intervened in the injunction suit, adopting the averments of the petitions filed by the present relators (except as to private interests), and alleged that said concert hall is a public nuisance, contrary to good morals and public order, and that Schoenhausen has not obtained the consent of a majority of the property owners and residents within a radius of 300 feet.

The lower judge having refused to dissolve the injunction on bond, a rule was issued to the present relators to show cause why the injunction should not be so modified as to permit Schoenhausen to open and carry on his business of concert saloon and bar-room "in conformity to and in obedience to the laws of the State and ordinances of the city of New Orleans and forbidding him from carrying on said business in violation of the laws of the State and the ordinances of the city of New Orleans." In the rule Schoenhausen averred that he had paid his State and city licenses and annexed the same, amounting to $ 6000, for 1893.

The present relators excepted to this rule, on the ground that it is unauthorized by law and that it is an attempt to anticipate the trial on the merits. The lower judge overruled this exception, and after hearing the rule he modified the injunction by enjoining Schoenhausen "from carrying on his bar-room and concert saloon in any manner violative of the laws of the State or the ordinances of the city of New Orleans, and forbidding him from permitting disorderly persons to congregate therein or otherwise creating a nuisance in his said establishment injurious to the plaintiffs."

In his opinion, on modifying the injunction, the lower judge said substantially that the injunction did not issue as a matter of right under Art. 298, C.P., but under Art. 303, C.P. which vests in the judge a discretion to determine whether the injurious acts set forth entitle a complainant to an injunction; and that as the judge, in cases arising under Art. 303, C.P., has a discretion in allowing or refusing an injunction before trial, he is, in like manner, vested with discretion to modify a preliminary injunction which improvidently issued and is used to deprive a litigant of a legal right to be heard in court or is used to finally decide a case before trial. The lower judge further said that by the charter of the city of New Orleans, Act 20 of 1882, Sec. 8, and the license law of the State, Act 150 of 1890, concert saloons are authorized and licensed and that the Supreme Court has decreed the validity of the acts of the Legislature imposing a license upon those establishments and that those acts have been recognized and enforced by the Supreme Court. He further said that Act 69 of 1888, requiring the consent of a majority of the property owners and residents within a radius of 300 feet from the concert saloon, has been declared null and void at the suit of the Attorney General against McCuen et al., No. 24,711...