State v. Heidenhain

• Decision Date: 01 April 1890
• Docket Number: 10,537
• Citation: 42 La.Ann. 483,7 So. 621
• Court: Louisiana Supreme Court
• Parties: THE STATE OF LOUISIANA v. HENRY HEIDENHAIN

7 So. 621

42 La.Ann. 483

THE STATE OF LOUISIANA v. HENRY HEIDENHAIN

No. 10,537

Supreme Court of Louisiana

April 1, 1890

APPEAL from the First Recorder's Court for the Parish of Orleans. Murphy, J.

T. McC. Hyman, Assistant City Attorney, and Carleton Hunt, City Attorney, for Plaintiff and Appellee.

E Howard McCaleb, Girault Farrar and Henry Heidenhain, for Defendant and Appellant.

OPINION

MCENERY, J.

The defendant appeals from a conviction by the First Recorder's Court of the City of New Orleans for a violation of Ordinance No. 4197, adopted January 2, 1890. For two distinct and separate violations of the ordinance he was for each violation sentenced to pay a fine of $ 25, or thirty days' imprisonment.

The ordinance is as follows:

Whereas The custom of permitting smoking in the street cars of this city is a most vile and objectionable one to the majority of our citizens, especially to the ladies, who are entitled to that courtesy and consideration due to their sex; and

Whereas This alone of all the cities of the Union allows such a discomfort to those of its citizens who ride in the public cars; be it

Resolved That from and after the promulgation of this ordinance, that smoking in any street car of this city is hereby prohibited and shall hereafter be considered as a misdemeanor, and any one so offending, or any driver of a street car who permits such an offence, shall be fined not less than $ 5 nor more than $ 25, or imprisoned not less than five days or more than thirty days, recoverable by the Recorder of the district in which the offence shall be committed. And be it further

Resolved, That one-half of any money thus recovered shall be the property of the party giving such information and testimony to the Recorder as will lead to the conviction of the offender; be it further

Resolved, That all laws or parts of laws in conflict with the above be and the same are hereby repealed.

Adopted by the Council of the City of New Orleans, January 2, 1890.

The defence is:

1. The unconstitutionality of the ordinance.

2. That the City of New Orleans is without power or authority under her charter to pass such an ordinance.

3. That the ordinance in question is vague, indefinite and insufficient in its terms, and does not define what acts shall constitute a violation or infringement.

4. That it imposes upon the drivers of street cars duties and functions beyond the powers of the Common Council.

The ordinance does not deprive the defendant of personal liberty nor does it invade any right of private property.

Smoking is not made an offence, but it is prohibited only in a certain designated place.

The third and fourth grounds are without merit. The ordinance makes it specifically an offence to smoke in a street car. The street car drivers and the car companies are not complaining of the ordinance.

2. The several street railroad companies have adopted the above ordinance as a part of their regulations, and prohibited smoking in 86 all their cars immediately after the passage of the ordinance. When the defendant entered the car there was conspicuously displayed a card notifying him that smoking was prohibited in that particular car.

A nuisance belongs to "that class of wrongs that arise from the unreasonable, unwarrantable or unlawful use by a person of his own property, either real or personal, or from his own improper, indecent or unlawful personal conduct, working an obstruction of or to the right of another or of the public, and producing such material annoyance, inconvenience or discomfort or hurt that the law will presume a consequent damage." Woods on Nuisance.

There is no doubt of the fact that smoking in the street cars in the City of New Orleans had caused to the great majority of people using them material annoyance, inconvenience and discomfort. This is particularly so in the winter season when the cars are closed. There is not only discomfort, but positive danger to health from the contaminated air. The record establishes these facts.

Smoking in itself is not to be condemned for any reason...