L'Hote v. City of New Orleans

• Citation: 51 La.Ann. 93,24 So. 608
• Decision Date: 21 November 1898
• Docket Number: 12,753
• Parties: GEORGE L'HOTE v. CITY OF NEW ORLEANS ET ALS
• Court: Supreme Court of Louisiana

24 So. 608

51 La.Ann. 93

GEORGE L'HOTE v. CITY OF NEW ORLEANS ET ALS

No. 12,753

Supreme Court of Louisiana

November 21, 1898

Argued April 20, 1898

Rehearing Refused January 9, 1899.

ON APPEAL from the Civil District Court for the Parish of Orleans. King, J.

E Howard McCaleb, E. Howard McCaleb, Jr., and Rene C. Metoyer for L'Hote, Plaintiff, and Appellee, and for Church Extension Society of the Methodist Episcopal Church Intervenor and Appellant.

James J. McLoughlin, Assitant City Attorney, and Samuel L. Gilmore City Attorney, for City of New Orleans and Superintendent of Police, Defendants, Appellants.

MILLER J. NICHOLLS, C.J. sign the judgment, not being satisfied as to its correctness. BLANCHARD, J. concurs in the judgment also, for reasons assigned from the bench.

OPINION

MILLER, J.

The defendant's appeal from the judgment maintaining the injunction restraining the enforcement of the ordinance of the common council changing the limits beyond which lewd women are prohibited from residing.

From an early period it has been the policy of the councils of the city to assign limits for houses of prostitution by prohibiting, under prescribed penalties, the location of such houses beyond the designated limits. The ordinance, earliest in date on this subject, to which our attention has been directed, was passed in 1857. There were changes in the limits in subsequent years, and the last ordinance which gave rise to the present controversy prescribed the south side of Customhouse street to the north side of St. Louis, and from Basin to the lower side of Robertson street as the limits beyond which houses of prostitution were prohibited. This, as we understand it, extended the permitted limits of previous ordinances so as to include St. Louis street from which such houses had been excluded by the ordinance passed shortly preceding that the city is now seeking to enforce. This last ordinance restricts the limit assigned to these houses by the previous ordinances by substituting "between Basin and Robertson streets," for the more enlarged space comprised between the river in front and the rear of the city designated by earlier ordinances, although St. Louis street is embraced in the last ordinance, not in the ordinance immediately preceding the last enactment. It is claimed that St. Louis street never was within the space assigned for these houses; we derive a different impression, but whether or not included in the earlier ordinances, can exert no appreciable influence on our decision.

The plaintiff, a property owner, and a resident on Treme street, intersecting St. Louis street, and half a square from St. Louis street, alleges in his petition for the injunction, the close proximity of his dwelling to that portion of St. Louis street brought within the area in which houses of prostitution are to be allowed by the ordinance he proposes to enjoin; that his locality has been and is free from such houses; that their introduction is calculated to render his property unfit for his family dwelling and greatly depreciates its value; that the ordinance excludes a large portion of the area in which houses of prostitution were previously permitted, at the same time enlarging the limits so as to embrace St. Louis street; that the city, by the previous ordinance designating the limits and excluding St. Louis street, had exhausted the legislative power in respect to the subject, and the petition charges that the ordinance is oppressive, unjust and violative of the protection to persons and property accorded by the Constitution of the United States and of the State. There is an intervention by a religious corporation, owning and maintaining a church near St. Louis street, between Robertson and Villere streets, and another intervention by another property owner in the same neighborhood; the allegations in the petitions of intervention present the subject in a different phase, and allege the injury to property within the designated area, arising from confining houses of prostitution as proposed by the ordinance. Thus the theory of the plaintiff's petition is that the city has no power to change the limits of houses of prostitution; the position of the intervenors is, there should be no limits for such houses.

The city and the officials sought to be restrained by the injunction, except to the jurisdiction of the Civil District Court, on the ground that the injunction sought is directed against the enforcement of a penal statute; that the petition discloses no cause of action, and, on other grounds unnecessary to notice. The judgment maintained the injunction and this appeal followed.

It is clear that the Civil District Court has no jurisdiction to restrain prosecutions for crime confided by the law to the criminal courts. No prevention of such prosecutions is attempted. The plaintiff seeks the injunction for the protection of his rights of property, menaced, as he conceives, by an illegal ordinance. The right of the citizen to that protection, is too clear to permit dispute, and, in our view, the petition contains all that is essential to secure relief at our hands, if the allegations in the petition are supported. 1st High on Injunction, S. 68.

The regulation of houses of prostitution would seem to be so closely connected with public order and decency; the policy announced by the ordinance has been so long exerted in all large cities of our country; and the...