An ordinance passed by the City of New Orleans, under authority
conferred by the Legislature of Louisiana, prohibiting the keeping
of any private market within six squares of any public market of
the city, under penalty of being sentenced, upon conviction before
a magistrate, to pay a fine of twenty-five dollars and to be
imprisoned for not more than thirty days if the fine is not paid,
does not violate the Fourteenth Amendment of the Constitution of
the United States.
The case is stated in the opinion.
Page 139 U. S. 622
MR. JUSTICE GRAY delivered the opinion of the Court..
The plaintiffs in error were severally complained of, tried,
convicted, and sentenced in a recorder's court of the City of New
Orleans for keeping a private market within six squares of a public
market, in violation of ยง 4 of an ordinance of the city, copied in
the margin,
* and passed under
the authority conferred by the statute of Louisiana of 1878, No.
100, as follows:
Page 139 U. S. 623
"SEC. 2. That the city council of the City of New Orleans be,
and they are hereby, authorized and empowered to make such
arrangements and pass such ordinances for the government and
regulation of the private markets in the City of New Orleans as
they in their discretion may deem proper, and that they be vested
with full power to provide for the enforcement of their said
ordinances: provided the city council shall not have the power to
prohibit the existence of private markets under proper
regulations."
"SEC. 3. That the said city council may prescribe by ordinance
the manner in which such private markets shall be kept, the portion
of the city in which they shall be located, and the distance which
they shall be removed from the public markets, and shall have power
to provide for the enforcement of said ordinances,
provided no private market shall be established within a
radius of six squares of any public market."
The cases were consolidated, and on appeal to the supreme court
of the state, the judgments were affirmed. 39 La.Ann. 439. The
plaintiffs in error contended in the recorder's court, and
afterwards assigned for error, that their privileges and immunities
as citizens of the United States had been abridged, and that they
had been deprived of liberty and property without due process of
law, and had been denied the equal protection of the laws, contrary
to the Fourteenth Amendment of the Constitution of the United
States. The case is too plain for discussion. By the law of
Louisiana,
Page 139 U. S. 624
as in states where the common law prevails, the regulation and
control of markets for the sale of provisions, including the places
and the distances from each other at which they may be kept, are
matters of municipal police, and may be entrusted by the
legislature to a city council, to be exercised as in its discretion
the public health and convenience may require.
Morano v.
Mayor, 2 La. 217;
First Municipality v. Cutting, 4
La.Ann. 335;
New Orleans v. Stafford, 27 La.Ann. 417;
Bush v. Seabury, 8 Johns. 327;
Buffalo v.
Webster, 10 Wend. 100;
Nightingale's Case, 11 Pick.
168;
Commonwealth v. Rice, 9 Met. 253. The ordinance of
the City of New Orleans prohibiting the keeping of a private market
within six squares of any public market of the city under penalty
of a fine of $25 and of imprisonment for not more than thirty days
if the fine is not paid was within the authority constitutionally
conferred upon the city council by the legislature of the state. A
breach of such and ordinance is one of those petty offenses against
municipal regulations of police which, in Louisiana as elsewhere,
may be punished by summary proceedings before a magistrate without
trial by jury. Constitution of 1852, arts. 103, 124; Constitution
of 1868, arts. 6, 94;
State v. Gutierrez, 15 La.Ann. 190;
Mayor v. Meuer, 35 La.Ann. 1192;
Callan v.
Wilson, 127 U. S. 540,
127 U. S.
553-555.
Judgment affirmed.
*
"
Ordinance 4778"
"1. That private markets for the sale of meats, fish,
vegetables, fruit, and other comestibles may be opened and kept in
any portion of the City of New Orleans not within a radius of six
squares of any public market of said city.
provided the
proprietor of said market pays the license provided therefor and
otherwise complies with the provisions of this ordinance and other
ordinances relating to the same subject matter."
"2. That all private markets shall be kept in the lower story of
the building in which they are opened. They shall be thoroughly
washed and cleansed daily, and no meats or other comestibles shall
be exposed on the banquettes. They shall be closed punctually at
twelve o'clock meridian of every day. For any violation of any of
the provisions of this section, the person offending shall be
liable to a fine of not less than five nor more than twenty-five
dollars, to be imposed and collected by the recorder of the
district in which the said market may be situated. In default of
the payment of each and every fine so imposed, the person so
defaulting shall be subjected to imprisonment for a time not to
exceed thirty days nor less than five days."
"3. That the administrator of commerce shall have full authority
by himself or deputy to inspect all private markets at any hour
when they may be open for business, and any refusal by any
proprietor of a private market to permit such inspection shall
render him liable to a fine, to be imposed and collected as
provided in the preceding section."
"4. That no private market shall be permitted within a radius of
six blocks of any public market of the city, as per plan on file in
the office of the administrator of commerce, designating and
specifying the same, and making part of this ordinance, and it
shall be the duty of the chief of police, under the direction of
the administrator of commerce, to cause any private market opened
in violation of the provisions of this section to be closed, and
any person opening a private market in violation of the provisions
of this section, and within the said prohibited distance, shall be
liable to a fine of twenty-five dollars for each and every offense,
said fine to be imposed and collected by the recorder of the
district in which said private market may be situated. In default
of the payment of each and every fine so imposed, the person so
defaulting shall be subject to imprisonment for a term not to
exceed thirty days nor less than five days."
"5. That any person or persons applying to the administrator of
finance for a license to keep a private market shall, before
obtaining said license, produce a certificate from the
administrator of commerce showing the location of said private
market and that all the requirements of this ordinance have been
complied with by the person or persons asking a license."