Sugar v. City of Monroe

• Decision Date: 01 January 1901
• Docket Number: 14,320
• Citation: 32 So. 961,108 La. 677
• Court: Louisiana Supreme Court
• Parties: ISADORE, SAMUEL AND BARNEY J. SUGAR v. CITY OF MONROE ET AL

32 So. 961

108 La. 677

ISADORE, SAMUEL AND BARNEY J. SUGAR v. CITY OF MONROE ET AL

No. 14,320

Supreme Court of Louisiana

January 1, 1901

Rehearing refused.

APPEAL from the Sixth Judicial District, Parish of Ouachita -- Hall, J.

Hudson Potts, & Bernstein (E. Tyler Lamkin, of Counsel), for Plaintiffs, Appellants.

Harry H. Russell, City Attorney, and Stubbs & Russell, for the City of Monroe, Defendant, Appellee.

William Francis Millsaps, for Stewart & Co., Defendants, Appellees.

MONROE J. BLANCHARD, J., takes no part.

OPINION

MONROE J.

The plaintiffs, as citizens and taxpayers, and as owners and licensees of an opera house, in the City of Monroe, bring this suit to restrain the corporate authorities and "Tom Stewart & Co." from using as a theatre a school building belonging to the corporation. The facts disclosed by the evidence are: that, in October, 1898, the Mayor and Council submitted to the qualified taxpayers of Monroe a proposition to raise, by means of an issue of bonds, predicated upon a five-mill tax, the sum of $ 155,000, for the construction of certain specified public improvements, including a school building, to which $ 20,000 of said amount was to be appropriated; and the proposition was favorably acted upon at an election called for its consideration. To the $ 20,000 thus raised, the city added nearly $ 50,000, drawn from other public revenues, and the aggregate amount was expended in the construction and equipment of a fine building intended and now used for the purposes of a high school, and which, among other advantages, is provided with an auditorium capable of accommodating over a thousand persons. Whether those under whose directions this building was designed originally contemplated making use of the auditorium as a public theatre does not appear, but it is quite certain that no intimation of such a purpose was conveyed to the taxpayers to whom the proposition mentioned was submitted. Since the completion of the building, the city authorities have undertaken, under cover of a pretended lease to the janitor, to use the auditorium as a theatre in which the giving of theatrical, operatic, minstrel, and other performances is carried on as a business, and it is this action of which plaintiffs complain, both as tax payers and as proprietors of a theatre which they pay state and city licenses for the privilege of conducting. The so-called lease is a flimsy contrivance which deserves but little notice. The firm of Tom Stewart & Co. had no existence when it was signed, and, we think, has no existence now. Tom Stewart had been employed by the plaintiffs as "property man," at their theatre, and was paid by them $ 2.50 for his services during each performance. He was subsequently employed by the City, or the School Board, as janitor of the new high school building, and his wages were fixed at $ 45 per month, and, either at that time or later, under the name of Tom Stewart & Co., was assigned the role of lessee of the auditorium. The entire management of the auditorium, for theatrical purposes, has, however, been in the hands of a gentleman who is a member, and chairman, of the finance committee of the city council, mayor pro tem. of the city, and member, and chairman, of the entertainment committee of the school board, and who also figures, on the letter-heads of Tom Stewart & Co., as "manager." It is he who makes all the contracts with the minstrel, vaudeville, and other troupes that are engaged to give entertainments, and it is by his direction that the expense of operating the auditorium as a theatre is paid, by the checks of the city treasurer, drawn against an account kept in the name of that officer with the fiscal agent of the city. Tom Stewart conducts none of the correspondence with the theatrical agent, through whom the troupes are engaged, makes no contracts for exhibitions, keeps no accounts, knows nothing of the business except what he is told, and, in addition to his wages as janitor, receives $ 3.00, for each performance, for his services as property man. The state license for the theatre so conducted is paid, as the other expenses are paid, and no city license is exacted. It is said that these payments have been made in the way of advances to Tom Stewart & Co., and that they have not been made from the funds of the city, but from the proceeds of the entertainments given at the auditorium, which are intended, after paying expenses, to be used for the establishment of a library. Tom Stewart is, however, shown to be without means, or financial standing, so that, making advances to him is merely putting money into the business, and, as the money advanced is derived from the use of a building owned by the city and is paid out on the checks of the city treasurer, the distinction suggested, between the city funds and the library fund is of no practical significance.

It is also said that the auditorium is used as a theatre only when not in use for school purposes; that the one use is not inconsistent with the other, and that it is competent for, and within the discretion of, the city authorities thus to administer the city property entrusted to their charge. It appears that the building in question is a large three-story brick edifice, and that the auditorium occupies one side, extending through from the first to the third floor and separated from the class rooms and other apartments used for school purposes, on the first and second floors, by the main corridor, the entire third floor being used for the purposes last mentioned. After the institution of this suit, an arrangement was made by which those connected with the theatre are enabled to obtain access to the stage by means of an entrance upon that side of the building, and a screen has been erected in the corridor, so that patrons or others who are expected to enter the theatre through the main entrance are masked from those occupying rooms on the other side. It also appears that there is a heavy brick wall separating the auditorium from the corridor and that, when the doors leading through are closed, sounds in the one place are not much heard in the other. The fact most relied on, however, is, that the building is used as a theatre only at night, or upon Saturdays, or other holidays, when not in use for school purposes; and some testimony was taken, to which we will refer hereafter, with a view to determining whether such use is inconsistent with, or prejudicial to, that for which the building was constructed. There is also testimony tending to show that the cost of insurance is increased by reason of the use of the building for theatrical purposes.

ON THE MOTION TO DISMISS.

A motion is made to dismiss the appeal on the ground that the plaintiffs have disclosed no such pecuniary interest as...