New Orleans Baseball & Amusement Co., Ltd. v. City of New Orleans

• Decision Date: 07 January 1907
• Docket Number: 16,424
• Citation: 42 So. 784,118 La. 228
• Parties: NEW ORLEANS BASEBALL & AMUSEMENT CO., Limited, v. CITY OF NEW ORLEANS
• Court: Louisiana Supreme Court

42 So. 784

118 La. 228

NEW ORLEANS BASEBALL & AMUSEMENT CO., Limited, v. CITY OF NEW ORLEANS

No. 16,424

Supreme Court of Louisiana

January 7, 1907

Action by the New Orleans Baseball & Amusement Company, Limited against the city of New Orleans. Judgment for plaintiff. Motion for new trial was denied, and defendant applies for writ of prohibition. Application dismissed.

Samuel Louis Gilmore, City Atty., and John Patrick Sullivan, Asst City Atty., for relator.

Respondent Judge, pro se.

James Clark Henriques and Charles Rosen, for other respondents.

OPINION

LAND J.

On November 27, 1906, the council of the city of New Orleans adopted Ordinance No. 4,211, which reads as follows to wit:

"Section 1. That it shall be unlawful for any person or persons to establish or operate a baseball park or parks on any of the following streets or avenues of this city, or within a radius of two squares from such streets or avenues, to wit: St. Charles avenue, Esplanade avenue, Carrollton avenue, and Canal street.

"Sec. 2. That any person or persons violating the foregoing section of this ordinance shall be subject to a fine of not more than twenty-five dollars ($ 25.00), or to imprisonment for not more than thirty (30) days, or both, at the discretion of the recorder in whose jurisdiction such violation shall take place, and every day during which such baseball park or parks shall be operated in violation of this ordinance shall constitute a separate violation of the same, and shall be punishable as such."

On November 10, 1906, the New Orleans Baseball & Amusement Company, Limited, a corporation duly chartered for the purpose of establishing, operating, and maintaining a park for the playing of baseball, and to that end to acquire by purchase such property and ground as might be necessary to carry out the objects and purposes set forth in its charter, purchased a certain square of ground in the First district of the city of New Orleans, comprised within and bounded by Carrollton avenue and Banks, Palmyra, and St. James (now Pierce) streets, for the price of $ 40,000, with the intention to erect and operate thereon a baseball park.

On December 10, 1906, said company filed suit in the civil district court of the parish of Orleans, praying for an injunction restraining the mayor and officials of the city of New Orleans from enforcing said ordinance against the petitioner, and from interfering with petitioner in erecting and operating a baseball park on said square of ground.

The petition charged that said ordinance is illegal, null, and void for the reasons, to wit:

(1) That the council of the city of New Orleans had and has no power, right, or authority to pass said ordinance, and the same is ultra vires.

(2) That said ordinance is oppressive, unreasonable, unjust, and illegal.

(3) That said ordinance deprives petitioner of its property without due process of law, in violation of the Constitution and laws of this state, and in violation of the Constitution of the United States, and especially the fourteenth amendment thereof.

(4) That said ordinance denies to petitioner the equal protection of the laws, in violation of the Constitution and laws of this state, and in violation of the Constitution of the United States, and especially the fourteenth amendment thereof.

(5) That said ordinance operates an illegal discrimination against petitioner, by preventing petitioner from owning and operating a baseball park within the limits named, while others are permitted to own and operate baseball parks within said area, and are so operating the same by and with the consent and acquiescence of the said city of New Orleans.

The petition charges that said ordinance was adopted solely for the purpose of prohibiting petitioner from erecting and operating a baseball park on said square of ground, and that petitioner has been notified by the mayor of the city that said ordinance would be enforced against said company. The petition further alleges that the business of operating a baseball park is legitimate, and licensed by the city and state, and, if properly conducted, affords an innocent, harmless, and pleasant amusement to the people, and the enforcement of said ordinance will damage petitioner in many thousand dollars by deprivation of its franchise and property rights in the premises.

The district judge ordered the defendant city to show cause why the preliminary injunction should not be granted as prayed for by the plaintiff.

The city of New Orleans answered:

(1) That the court was without jurisdiction ratione materiae to issue an injunction to restrain the municipal authorities from enforcing a police ordinance, penal in its nature.

(2) That plaintiff's petition discloses no cause of action.

(3) That the ordinance complained of is legal and valid.

After hearing argument of counsel, the district judge ordered the preliminary writ of injunction to issue as prayed for by the plaintiff. Defendant filed a motion for a new trial, which was denied, and thereupon application was made to the Supreme Court of a writ of prohibition.

This court ordered the district judge to show cause why the writ of prohibition applied for should not be granted.

The respondent judge, for answer, avers that the civil district court was seised of jurisdiction to issue the injunction and to grant the relief prayed for by plaintiff, and makes part of his answer the record of the cause, including his written opinion assigning reasons for his action, from which we make the following extracts, to wit:

"The substance of the petition is that plaintiff purchased a piece of property and proposed to erect thereon a baseball park, in which to play baseball, and thereafter the city of New Orleans, for the purpose of preventing its operating that baseball park, passed an ordinance prohibiting baseball parks in a certain area. It is alleged in the petition that other baseball parks are operated in the same area, and in the argument of counsel on this application it is admitted or stated that there are from two to three baseball parks in that same area, which had existed there for 25 years before the passage of this ordinance.

"This court has jurisdiction to preserve property rights. It makes no difference, where the court undertakes to preserve property rights, that it has to deal, in connection therewith, with criminal ordinances.

"Now, in passing upon this application, the allegations of the petition must be taken as true. The playing of baseball on a park, or keeping a baseball park, is not a nuisance per se. It cannot be declared a nuisance by ordinance, nor can an ordinance be passed to prevent the playing of baseball in a park in a certain area, in a park owned by certain persons, and permit certain other persons in the same area to play or continue to play the game of baseball in a park owned by them. Such an ordinance is discriminatory and personal, and, if the facts or allegations in the petition are true, it is certainly illegal, null, and void."

The writ of prohibition issues to the judge of the inferior court where the cognizance of the cause does not belong to such court or it is not competent to decide it. Code Prac. art. 846.

In the case at bar the city contends that the civil district court for the parish of Orleans is without jurisdiction to issue an injunction, when it appears that the effect of the injunction is to prohibit the enforcement of an ordinance in the nature of a police regulation, and that the question of the legality and constitutionality of such an ordinance should be left to the court in, and to the occasion upon, which the...