Noe v. Maestri

• Decision Date: 12 June 1939
• Docket Number: 17196.
• Citation: Noe v. Maestri, 190 So. 590 (La. App. 1939)
• Court: Court of Appeal of Louisiana — District of US
• Parties: NOE v. MAESTRI, MAYOR, ET AL.

190 So. 590

NOE v. MAESTRI, MAYOR, ET AL.

No. 17196.

Court of Appeal of Louisiana, Orleans.

June 12, 1939

Appeal from Civil District Court, Parish of Orleans; Walter L Gleason, Judge.

Suit by James A. Noe against Robert S. Maestri, individually and as mayor of the city of New Orleans, and another to enjoin the defendants from interfering with distribution of circulars issued by plaintiff in furtherance of his prospective candidacy for Governor.From a judgment refusing, on a rule nisi, to grant plaintiff a preliminary injunction, plaintiff appeals devolutively.

Affirmed.

James David McNeill, of New Orleans, for appellant.

Francis P. Burns and Henry B. Curtis, both of New Orleans for appellees.

McCALEB, Judge.

This is a devolutive appeal by the plaintiff, Senator James A. Noe taken under the provisions of Section 5 of ActNo. 29 of 1924 from a judgment, on a rule nisi, refusing to grant him a preliminary injunction to prevent the Mayor of the City of New Orleans and the Superintendent of Police from interfering with the distribution of circulars or leaflets issued by him in furtherance of his prospective candidacy for Governor of this state.

In his petition to the District Court, the plaintiff alleged that he caused to have printed 150,000 leaflets for distribution among the electorate of the City of New Orleans for the purpose of acquainting the voters with his platform; that he employed numerous persons to distribute these leaflets throughout the City and that certain police officers of the City, acting under the direction, supervision and control of the defendants, arrested six of his employees who were lawfully engaged in giving out his circulars.He averred that, after these employees were arrested, they were taken to police headquarters where they were charged with loitering when (to the knowledge of the officers)they were not loiterers and were, in fact, engaged in the lawful occupation of distributing the circulars or leaflets; that the arrests for loitering were not made in good faith by the police officers and that the charge was a mere subterfuge employed by the police in pursuance of a scheme, entered into by the defendants, to prevent plaintiff from distributing his leaflets to the voters of New Orleans.He further set forth, alternatively, that, if the Mayor and Superintendent of Police should believe or contend that his employees, who were arrested, were erroneously charged as being loiterers and should have been charged with distributing the circulars or leaflets without having first obtained a permit as required by a certain ordinance of the City of New Orleans, then that ordinance was unconstitutional as being violative of the provisions of both the state and federal constitutions.

The judge of the district court forthwith issued a rule nisi and ordered the Mayor and Superintendent of Police to show cause why a preliminary injunction should not be issued against them as prayed for by plaintiff.The defendants appeared on the return day of the rule and resisted the issuance of the writ by way of exception and answer.In their answer, they admitted the arrest of the six men referred to in plaintiff's petition and that these men had been charged with loitering.However, they did not contend either that the men had been erroneously charged or that they should have been arrested for distributing the plaintiff's leaflets without a permit and they further alleged that they had no intention whatsoever of ordering or instructing the police officers of the City of New Orleans to make any arrests, except where probable cause existed, and that, in the future, no such arrests would be made.

At the trial of the rule on its merits, the Superintendent of Police, testifying in open court, disclaimed any previous knowledge that the arrests of the plaintiff's employees were to be made and he gave his assurance to the judge that the police officers would not thereafter interfere with the constitutional right of the plaintiff to have his circulars or leaflets distributed in the City.Upon this showing, the judge refused plaintiff's application for a preliminary injunction.On March 21, 1939, the plaintiff prosecuted a devolutive appeal to this court from the interlocutory decree.On the following day, he invoked the supervisory jurisdiction...