Tanner v. Beverly Country Club

• Decision Date: 30 June 1950
• Docket Number: Nos. 39489,39514,s. 39489
• Citation: 47 So.2d 905,217 La. 1043
• Parties: TANNER et al. v. BEVERLY COUNTRY CLUB, Inc., et al. ELLZEY et al. v. ORIGINAL CLUB FOREST, Inc., et al.
• Court: Louisiana Supreme Court

Page 905

47 So.2d 905

217 La. 1043

TANNER et al. v.BEVERLY COUNTRY CLUB, Inc., et al.

ELLZEY et al. v.ORIGINAL CLUB FOREST, Inc., et al.

Nos. 39489, 39514.

Supreme Court of Louisiana.

June 30, 1950.

Rehearing Denied Aug. 15, 1950.

J. I. McCain, New Orleans, for plaintiffs-appellants.

Fred A. Middleton, New Orleans, for defendants-appellees.

FOURNET, Chief Justice.

The above entitled and numbered causes, presenting identical issues, were consolidated in this court.In each case taxpayers and residents of the Parish of Jefferson, in the first listed case 26 and in the second 16, availing themselves of the provisions of Act 192 of 1920, as amended, are seeking to have the establishments located in the Parish of Jefferson, known as the Beverly Country Club in the first case and the Original Club Forest in the second, declared public nuisances and, as such, abated, and the places closed for one year; and to have the defendants, owners and operators thereof, enjoined forever from being concerned in conducting a like public nuisance anywhere in the State of Louisiana.Each case is before us for consideration on appeal by the plaintiffs from the judgment of the lower court holding that the plaintiffs have neither a right nor a cause of action for the reason (amongst others not urged here)that Act 192 of 1920, as amended, under which these proceedings are authorized, is unconstitutional in that Section 3 of the act authorizes any 10 taxpayers to bring such a suit in any of the district courts of this state, including the Civil District Court of Orleans Parish, regardless of the location of the nuisance sought to be abated, thereby extending the territorial jurisdiction of the several district courts of this state beyond their respective limits as fixed by Sections 31and81 of Article VII of the Constitution of 1921, and that such proceedings are in violation of the due process clause of the Constitutions of this state and of the United States.Const. 1921, Art. 1, § 2;U.S.Const. Amend 14.

The plaintiffs are contending here, however, that this court in its judgment rendered on November 8, 1948, reported in 214 La. 791, 38 So.2d 783, reversing the judgment of the lower court maintaining the defendants' plea to the jurisdiction of the district court, and overruling said pleas, disposed of the issue of the constitutionality of the act, and that that decision is controlling here.

While the defendants' plea to the jurisdiction was based on their claim that the act clearly authorized any 10 taxpayers to file suit in any district court of the state, regardless of the location of the alleged nuisance, and that therefore it was unconstitutional in that it sought to extend the territorial jurisdiction of the several district courts of this state as fixed by the Constitution of 1921, a mere reference to the prevailing opinion will readily disclose plaintiffs' error in their contention, for the court, in clear and unmistakable language, refrained from passing on this issue, stating:

'It is not necessary to decide in the present cases, whether section 3 of the statute in question conflicts with the general arrangement of the judicial districts throughout the state as defined or limited in article 7 of the Constitution of Louisiana; nor is it necessary to decide here whether section 3 of the statute violates the due process clause by authorizing the filing of an abatement suit, such as these suits, in any district court which the plaintiff may select without regard for the place of residence or domicile of the defendant and without regard for the location of his place of business which the plaintiff seeks to abate as a gambling house and hence a public nuisance.

'There are two distinct reasons why the defendants in these cases have no right to plead that section 3 of the statute in question is unconstitutional for conferring upon the plaintiff or plaintiffs in an abatement suit, such as these suits, the right to select the district court in which he will institute his suit.The first of these reasons is that the statute does not purport to give the plaintiff in an abatement suit of this kind the right to select the district court in which he will institute his suit.The second of these reasons is that the present suits were brought in the parish in which all of the defendants have their domicile, and in which the alleged gambling houses are located,--that is, in the Parish of Jefferson. * * *'214 La. at page 795, 38 So.2d at page 785.

It may be well to observe here that at the time these cases were first argued before this court, counsel for the plaintiffs conceded that if this court placed upon the statute the construction contended for by the defendants and adopted by the lower court, namely, that it authorized the filing of an abatement suit in any district court which the plaintiff might select without regard to the residence of the defendant or the place of business sought to be abated, that the act was unconstitutional.At that time four of the members of this court unqualifiedly entertained these views, and, accordingly, the cases having been tentatively assigned to the former Chief Justice, were taken from him and assigned to Mr. Justice McCaleb at his request.However, after giving the matter further consideration, the Justice came to the conclusion that the plea to the jurisdiction was not well founded--even though he had not changed his views concerning the construction of the statute, and despite the fact that the attorney for the plaintiffs had conceded the unconstitutionality of the act under that interpretation.It was Justice McCaleb's opinion that there was no limitation on the legislative power to do just that; whereupon the case was handed back to the former Chief Justice for writing.His opinion, however, was concurred in by only two justices, the other four adhering to the view that the legislature, in adopting the amendment of 1940, intended to give a right to any ten taxpayers to choose their forum in any of the district courts of this state, including the Civil District Court of Orleans Parish, and to there institute suit for the abatement of such a nuisance, regardless of its location or the residence of its owners and operators.Thus it may be seen that the constitutionality of the act was not passed upon by this court when the case was previously before us, and therefore its constitutionality vel non is before us on this appeal.

The Legislature of 1920(then the General Assembly), following the constitutional mandate declaring that gambling is a vice and that the legislature shall pass laws to suppress it (Section 188 of the Constitution of 1913, the same provision being retained in the Constitution of 1921, Section 8 of Article XIX) adopted its Act 192, defining, for the purpose of any action under the act, a gambling house (Section 1), which is declared to be a public nuisance, and the owner of such place, or his agent, or lessee, or sublessee, or other occupants, to be guilty of maintaining a public nuisance (Section 2); and giving the right to 'any taxpayer, whether a natural or an artificial person and whether a citizen or non-resident, * * * to file a suit in any District Court in this State, or in the Civil District Court for the Parish of Orleans to abate the nuisance created by such gambling house and to have the owner, lessee, sub-lessee, agent or other occupant declared guilty of maintaining a public nuisance.'(Section 3.)Section 4 provides that a suit may be brought against the assessed owner when the names of the lessee, tenants, or other occupants of a gambling house are unknown--giving the right to such owner, however, to implead the real parties responsible for the maintenance of the nuisance.Section 5 provides for the manner of proceeding with the trial of the cause.Section 6 declares a violation of any judgment, interlocutory order or decree, injunction or restraining order issued, to be contempt of court, and provides further that 'the maintenance, or operation, of a nuisance as defined herein by a person, or persons, previously enjoined under this Act in any jurisdiction in the state from maintaining such a nuisance shall be, and is hereby declared to be, ipso facto, contempt of the court in the jurisdiction where such nuisance is maintained, punishable upon the mere showing of the previous injunction and the maintenance of such nuisance.'The punishment for such contempt is set out in Section 7, providing find and jail sentence for each offense.Section 8 creates a special lien and privilege on all the property of one found in contempt and a right to sell the same for the satisfaction of any such fine.When the subject place is owned by a corporation, Section 9 makes the head or president of the corporation amenable to the act and its penalties as though he were the actual owner of the place; and in Section 10the act provides: 'That where a petition is filed under this act and such petition is supported by the ex parte affidavits of two reputable citizens sworn to before any officer authorized by law to administer oaths to affidavits, detailing matters within such affiants' knowledge and clearly establishing the existence of a nuisance as defined in Section 1 of this act, the court to whom such petition and affidavits is presented shall forthwith issue a temporary injunction, to be in force until the hearing of the rule to show cause under Section 5 of this act; and said temporary restraining order shall prohibit the use of the place where said nuisance is averred to exist for any purpose, or purposes, whatsoever pending the trial and determination of the said rule to show cause.'(Emphasis ours.)

Sections 3and10 of this act were amended by the Legislatures of 1938 and 1940.In 1938, by Act 49, the legislature amended and re-enacted these sections to read as follows: 'Section 3.Twenty-five real estate taxpayers, who shall have resided and voted...