Town of St. Martinville v. Dugas

• Decision Date: 02 March 1925
• Docket Number: 26947
• Citation: 103 So. 761,158 La. 262
• Court: Louisiana Supreme Court
• Parties: TOWN OF ST. MARTINVILLE v. DUGAS In re TOWN OF ST. MARTINVILLE

103 So. 761

158 La. 262

TOWN OF ST. MARTINVILLE v. DUGAS

In re TOWN OF ST. MARTINVILLE

No. 26947

Supreme Court of Louisiana

March 2, 1925

Rehearing Denied March 30, 1925

Judgment of district court annulled, and case ordered reinstated for further proceedings.

John L Kennedy, of La Fayette, for relator.

J. D Simon and Dan W. Voorhies, both of St. Martinville, for respondent.

O'NIELL, C. J. ST. PAUL and BRUNOT, JJ., concur in the dissenting opinion.

OPINION

O'NIELL, C. J.

The question in this case is whether a market ordinance of the town of St. Martinville is valid. The ordinance provides for a public market, owned and conducted by the municipality, and forbids butchers and retailers of butchers' meat to sell elsewhere than in the market. As amended, the ordinance now forbids also delivering in the town any butchers' meat that has not been exposed for sale in the public market. It is this amendment, forbidding delivering in the town meat that is sold outside of the town, that the district court has declared ultra vires and unconstitutional.

Ludovic Dugas, the defendant here, is a butcher in the parish of St. Martin, near St. Martinville. For several years he rented a stall in the public market in St. Martinville and sold his meat there. At that time the market ordinance forbade the selling of butchers' meat elsewhere in the town than at the public market, but did not in terms forbid delivering in the town meat sold elsewhere than in the public market. Dugas therefore established a market of his own outside of the town, and gave up his stall in the public market. Thereafter he did not sell meat in the town, but delivered to his customers in the town meat that he sold at his place of business, outside of the town; most of the sales being made on telephone orders from customers in the town. The town council then amended the market ordinance, as we have said, to fit Dugas' case. The eighth section of the ordinance, as amended, reads:

"That butchers and retailers of butchers' meat shall not expose same for sale elsewhere than at the regular stalls in the public market provided for in this ordinance, and that no person shall sell or deliver any butchers' meat within the limits of the town of St. Martinville, Louisiana, except such meats as are exposed for sale at the public market, in said town of St. Martinville, Louisiana.

"Any person violating the provisions of this section shall be fined," etc.

Dugas was prosecuted in the mayor's court for violating the eighth section of the ordinance by delivering in the town meat that he had sold outside of the town and that had not been "exposed for sale at the public market." He stood mute, declining to plead; and the mayor entered a plea of not guilty for him, and, on proof of the facts, convicted him and sentenced him to pay a fine or be imprisoned. He appealed to the district court, and there, for the first time, pleaded that the eighth section of the ordinance was ultra vires and unconstitutional. The court sustained the plea and dismissed the prosecution. Thereupon the attorney for the town gave notice that he would invoke the supervisory jurisdiction of this court. Later he thought it possible that the district judge might grant him an appeal to the Supreme Court on the question of constitutionality or legality of the ordinance; so he asked for the appeal. The judge refused to grant it; and his ruling was correct, because the case had been decided on appeal. If the question of constitutionality or legality of the ordinance had been tendered in the mayor's court, and decided there, either the town or the defendant would have had a right of appeal directly to the Supreme Court upon the question of constitutionality or legality of the ordinance, and Dugas would have had a right of appeal to the district court on other questions. State ex rel. Hart v. Judge, 113 La. 654, 37 So. 546; Town of Many v. Franklin, 115 La. 638, 39 So. 740; City of New Orleans v. New Orleans Butchers' Co-operative Abatoir Co., 153 La. 536, 96 So. 113.

The attorney for the town had some hope that Dugas might yet plead in the mayor's court that the ordinance was unconstitutional or illegal, so Dugas was prosecuted again. But again he stood mute, was tried, convicted, and sentenced, and again he appealed to the district court, and there pleaded that the eighth section of the ordinance was unconstitutional and ultra vires. He pleaded also that the issue had become res judicata by the judgment of the district court in the first prosecution. The court sustained the plea of res judicata, which we take to mean that, for the reasons given in the written opinion which he had rendered in the first prosecution, the judge declared again that the eighth section of the ordinance was ultra vires and unconstitutional. The second prosecution was therefore dismissed; and the town, having no other remedy, has brought the matter here by writs of certiorari and prohibition.

The doctrine of res judicata does not apply to criminal prosecutions. The reason is that it does not settle questions of law, but merely settles disputes arising from a particular or given state of facts. It would not do for res judicata to grant the defendant, Dugas, immunity from prosecution, while all other persons remain subject to prosecution, for violation of this or any other municipal ordinance.

The district judge ruled that the eighth section of the ordinance violated the state Constitution because, as he thought, the title of the original ordinance was not broad enough to include the subject-matter of the amendment, forbidding delivering in the town meats sold outside of the town. The provision in the Constitution of the state, requiring every statute to have an appropriate title, has reference only to state statutes, not to municipal ordinances. Callaghan v. Town of Alexandria, 52 La.Ann. 1013, 27 So. 540. The only law that requires that municipal ordinances shall have an appropriate title is the provision in the thirty-third section of the Act 136 of 1898, p. 239, that "an ordinance shall not contain more than one subject, which shall be clearly expressed in its title." The provisions of the act of 1898, however, according to its fortieth section, do not apply to a municipality that was in existence when the act went into effect and that has not elected to come within its provisions. Town of Ruston v. Dewey, 142 La. 295, 76 So. 719. The town of St. Martinville was first incorporated in 1843, by the Act 110 of that year, and its charter was amended by the Act 44 of 1877. It seems that the municipality is now working under a special charter adopted on or about the 4th of April, 1898, according to the provisions of the Act 135 of 1896, authorizing municipalities to adopt a charter by vote of the citizens. It is conceded that the town of St. Martinville has not elected to come under the provisions of the Act 136 of 1898. Therefore the eighth section of the ordinance in question is not invalid for insufficiency of the title of the original ordinance.

Several other reasons for which the court declared the eighth section of the ordinance invalid are given in an elaborate opinion, which we restate in substance thus: (1) That the ordinance is ultra vires, on the theory that the authority of a municipality to establish a public market, or the general authority to regulate markets, does not include theauthority to forbid the selling of meat elsewhere than at the public market, or to forbid the delivering of meat sold outside of the town and not "exposed for sale at the public market." (2) That the ordinance is arbitrary and unreasonable, and discriminates in favor of persons residing in the town and against those residing outside of the town, and is therefore an attempt to deny due process of law and the equal protection of the laws, in violation of the second section of article 1, the Bill of Rights, of the Constitution of Louisiana, and the Fourteenth Amendment of the Constitution of the United States. (3) That the ordinance is an attempt on the part of the town to monopolize the market business. (4) That the discrimination against persons residing outside of the town extends even to the residents of other states, who might desire to ship fresh meat into St. Martinville, from Kansas City, for example; and that the ordinance, therefore, in so far as it undertakes to forbid the delivering of meat that has not been exposed for sale in the public market, is violative of the commerce clause, the third paragraph of the eighth section of article 1 of the Constitution of the United States.

Our opinion is that the eighth section of this ordinance is a reasonable police regulation, not amendable to any of the objections stated. Nearly a century ago this court decided, in Morano v. The Mayor, 2 La. 217, that the authority of a city to establish markets meant the right to confine the sale of meats, oysters, etc., to the market places established by the municipal council. In the course of his opinion Justice Martin, for the court, said:

"The city council has the power to establish markets, and to provide for the cleanliness and salubrity of the city.

"In establishing markets they designate certain spots or places for the sale of certain articles of provision; in doing so they facilitate the people in the purchase of provisions of first necessity, by confining the sale of them to particular places and hours of the day -- and they facilitate the inspection of provisions; and by the hire of stalls they raise money to defray the expenses of building market houses and pay the salaries of officers they appoint to prevent the sale of unsound provisions -- and they have an undoubted right to prevent the violation of ordinances they may pass in...