Louisiana Oyster & Fish Co., Ltd. v. Police Jury

• Decision Date: 06 June 1910
• Docket Number: 18,309
• Citation: 126 La. 522,52 So. 685
• Parties: LOUISIANA OYSTER & FISH CO., Limited, v. POLICE JURY, PARISH OF ASSUMPTION, et al. In re LOUISIANA OYSTER & FISH CO., Limited
• Court: Louisiana Supreme Court

52 So. 685

126 La. 522

LOUISIANA OYSTER & FISH CO., Limited, v. POLICE JURY, PARISH OF ASSUMPTION, et al. In re LOUISIANA OYSTER & FISH CO., Limited

No. 18,309

Supreme Court of Louisiana

June 6, 1910

Action by the Louisiana Oyster & Fish Company, Limited, against the Police Jury, Parish of Assumption, and others, for injunction. On denial of the writ plaintiff applies for writs of mandamus and certiorari. Denied.

John Dymond, Jr., and G. S. Guion, for applicant.

Respondent Judge, pro se.

OPINION

PROVOSTY J.

The relator is engaged in the business of catching fish for market. Relator alleges that it has over $ 5,000 invested in the business, in powerboats and seining outfits; that it has contracts for the future delivery of fish to be caught; that it has many men employed; that it has obtained licenses from the commissioners for the protection of birds game, and fish to fish in all the waters of the state during the year 1910; that for these licenses it has paid $ 135 that the value of its property right in said business and licenses exceeds $ 7,500; that, although the supervision and control of fishing in the fresh waters of the state for commercial purposes is vested by Act No. 278 of 1908 in the said commissioners for the protection of birds, game, and fish, the police jury of the parish of Assumption has passed an ordinance making it an offense to fish with a seine of more than 50 feet in the lakes and bayous of the parish; that the district attorney has caused the arrest of the employes of relator for violation of said ordinance, and will continue to do unless restrained by injunction; that, as the result of said criminal proceedings, relator has already suffered loss of $ 3,000 from its inability to carry out its contracts loss of profits, and demoralization among its employes; that the said Act No. 278 of 1908 has entirely superseded Act No. 60 of 1896 under the pretended authority of which the police jury has adopted said ordinance; and that said ordinance is, in consequence, null and void. Relator prays that the police jury and the district attorney be enjoined from carrying out the said ordinance.

The respondent judge refused to grant the injunction. Whereupon the relator filed in this court the present application for a writ of mandamus to compel the granting of the writ. In answer to the rule to show cause why the writ of mandamus should not be issued, the learned respondent judge assigns the following reasons:

"Into this honorable court now comes respondent in the above entitled and numbered cause, and for answer to the application of relators for writs of certiorari and mandamus avers:

That relators did apply to him for a preliminary order of injunction on or about the 11th day of May, 1910, whereby relators sought to prohibit and enjoin the police jury of the parish of Assumption and the district attorney of the Twenty-Seventh judicial district, acting in and for the parish of Assumption, from enforcing certain ordinances of said police jury and from prosecuting certain persons from violation of said ordinances, and that on or about the 13th day of May, in the exercise of the legal discretion vested in him, your respondent refused to sign or grant said order for the following reasons:

"That this government is based on three coordinate branches or departments, which, in order to subserve the ends for which they were instituted, must be entirely separate, free, and independent of one another, and, therefore, the judicial department should not, except for most weighty or grave reasons, interfere in the administration of the legislative or executive branches. In the case at bar, the judicial is asked to deny to the executive the right to appear in a court of justice to prosecute violations of a law enacted by the legislative department. The question primarily presented is not whether that law is good or bad or constitutional, but whether the executive or co-ordinate branch should be deprived of its inherent right to demand the enforcement of this law in the ordinary course of judicial proceedings -- the court is asked to say to the executive, 'you cannot appeal to the forum which the Constitution has designated to enforce this law, but you must come here, a different forum and show that this law was properly enacted and is constitutional; in the meanwhile, and pending this issue, you will have to remain, quiescent and not interfere in its violation.' That is the sole question which relator's demand presents for determination.

"The question is not a new one. It has frequently been passed upon. In the case of Lecourt v. Gaster, 49 La.Ann. 487 , this honorable court said: 'An injunction will not issue to restrain the execution of a criminal statute.' In [Boin v. Town of Jennings] 107 La. 410 , a recent case, your honors say: 'The question of the legality and constitutionality of a municipal ordinance, in the nature of a police regulation enforceable by fine and imprisonment, should be left to the court in and to the occasion upon which the attempt is made to enforce it; the remedy by appeal to this court being in such case open to the party as against whom the attempt is made. An injunction to restrain the enforcement of such an ordinance will not lie.' See, also [Levy v. Shreveport] 27 La.Ann. 620; [Mathews v. Town of Farmerville] 121 La. 313 ; [State ex rel. Walker v. Judge] 39 La.Ann. 135 ; 22 Cyc. 902. That the ordinance sought to be enjoined is a police regulation enforceable by fine and imprisonment cannot be gainsaid. The power to protect and regulate game and fish is within the police power of the state, and ordinances framed thereunder are police regulations. 19 Cyc. 1006; Black's Constitutional Law, § 154; [In re Schwartz] 119 La. 290 [44 So. 20, 121 Am. St. Rep. 516].

"But, say relators, granting the correctness of the foregoing principles which are imbedded in the jurisprudence, that same jurisprudence has for good reasons made an exception thereto. When a municipality enacts an ordinance which is illegal, and the enforcement of which will have the effect of depriving a person of property rights or vested rights, the execution thereof may be enjoined by a court of equity because the person has no other adequate remedy. These ordinances are illegal, and, unless the police jury of Assumption and the district attorney are prohibited from enforcing them, we have no adequate remedy, and we are being deprived of a property right which we swear is worth $ 7,500. They cite [Baseball & Amusement Co. v. New Orleans] 118 La. 232 [42 So. 784; L'Hote v. New Orleans] 51 La.Ann. 93 [24 So. 608, 44 L. R. A. 90].

"Now it must be borne in mind that no person has the inherent right to fish in the public waters of the state. These waters are public domain, and no person, regardless of any license or permission, can lawfully claim either an exclusive or a natural or a proprietary right to fish in these waters as long as the ownership is vested in the state. A person may under legal regulations obtain the privilege of fishing, but the permission of exercising this privilege cannot form the basis of a contract. Relators aver that they have paid $ 45 for each of several licenses. It would not, in my opinion matter if they had paid $ 4,500, for the reason that section 10 of Act No. 121 of 1906, under which they claim the license to have issued, does not authorize the sale of a license, but only...