State v. Natal

• Decision Date: 01 April 1887
• Docket Number: 9935
• Citation: 1 So. 923,39 La.Ann. 439
• Court: Louisiana Supreme Court
• Parties: THE STATE OF LOUISIANA v. J. NATAL, ET ALS

1 So. 923

39 La.Ann. 439

THE STATE OF LOUISIANA v. J. NATAL, ET ALS

No. 9935

Supreme Court of Louisiana

April 1, 1887

APPEAL from the First Recorder's Court. Davey, J.

W. H Rogers, City Attorney; L. O'Donnell, Assistant City Attorney; and Blanc & Butler for Plaintiff and Appellee.

Belden & Armbruster and S. J. N. Smith for Defendants and Appellants.

OPINION

BERMUDEZ C.J.

The defendants appeal from judgments rendered against them for the payment of a fine and in default of payment sentencing them to imprisonment for the violation of ordinance No. 4798 A. S., which forbids the keeping of private markets within six squares of a public market within the limits of the City of New Orleans.

The facts are admitted.

Several defences are set up, the main of which is that the law in furtherance of which the ordinance was adopted, as well as the ordinance itself, have been abrogated, annulled and repealed and are no longer in force; that, therefore, the fine imposed under the authority of the ordinance, is illegal for want of a law and that this court has consequently jurisdiction over the causes.

It is claimed that this repeal results from the adoption of the present city charter, in 1882, with which the law conflicts.

The defendants further urge that the laws of 1878, under the provisions of which the ordinance was passed, contemplated a monopoly and was abrogated by the present charter, and is in violation of the Constitution of the United States.

We consider that these and other objections to the constitutionality or legality of the ordinance in question and others similar to it, have been already considered and judicially determined in favor of the regulation.

Besides the defendants in the instant cases have not urged them on appeal and may be considered as having abandoned all resistance on those grounds. Dillon on Mun. Corp. 380, 3 La. 217; 4 Ann. 335; 27 Ann. 417; 31 Ann. 544; 36 Ann. 986; No. 8603 of the docket of this court, not reported in full; also in cases Nos. 9582, 9583, 9584 not yet reported.

So that, the only question now to be solved is whether the ordinance was or not repealed.

The ordinance in question, No. 4798 A. S., was adopted in 1878, under the provisions of act No. 100 of the Legislature previously adopted in the same year, the object of which was the regulation of private markets in the city of New Orleans. From that time to the present day, it has uniformly been enforced; what resistance was ever made to its application, having been judicially pronounced groundless and unauthorized.

The defendants in the present controversy however, argue that the city of New Orleans in existence at the date of the passage of the law and of the adoption of the ordinance, has ceased to exist as such, under the operation of act 20 of 1882, which is the charter of the city now in existence; that said law and said ordinance were not perpetuated, but were ignored and abrogated by the last charter, and that the present prosecutions are attempts to enforce a defunct municipal regulation, in violation of constitutional and statutory law and of the personal rights of the defendants.

The theory thus advanced rests upon the assumed proposition that the city of New Orleans in existence in 1878, is not the city of New Orleans existing in 1887.

This is a fallacy arising from a misconception and a confusion of ideas on the subject.

The city of New Orleans, founded by Bienville about 1718 has never ceased to exist as an agglomeration of human beings for social, commercial and industrial purposes.

It is a growing fact, which no legislation has ever blotted out and which no power can annihilate in a free country, although it be true that the form of government to which its inhabitants have been remitted, or the mode in which it may exercise its rights and powers, has from time to time been modified or changed. It is the civitas or polis of ancient times.

The inhabitants had a right to congregate and to establish a city for their greater comfort and welfare. In the absence of any charter incorporating them, they are like the rest of citizens in the country ruled by the general laws enacted for the government of all throughout the territory.

In 1805 those inhabitants were given a charter, for the first time since the session of 1803, and that charter has been altered or amended some way or other, in subsequent years, viz: 1812, 1818, 1833, 1835, 1837, 1846, 1850, 1852, 1870 and 1882, but the city, the existence of which was generally recognized by the various constitutions, has retained its identity, not only as a matter of fact, but also as a matter of legal necessity.

Whatever rights it originally possessed, whether because expressly conferred by the sovereign or because indispensably inherent to its nature and existence, it has continued to possess unless where such rights have been recalled or denied by the...