(143 La. 487)

No. 23010.

CITY OF NEW ORLEANS v. WHITE. (Supreme Court of Louisiana. April 29, 1918. Rehearing Denied May 27, 1918.)

(Syllabus by the Court.)

1. STATUTES 64(6)-PARTIAL INVALIDITYKEEPING DISORDERLY HOUSE.

The first section of a municipal ordinance declaring it unlawful to operate a house of prostitution or assignation being plain and legal, the defendant condemned under that section cannot sustain an objection of illegality to the whole ordinance on the ground that the other sections are illegal.

(Additional Syllabus by Editorial Staff.) 2. MUNICIPAL CORPORATIONS 594(1)-OR

DINANCE-MISDEMEANORS.

The law does not require that municipalities should grade misdemeanors or minor offenses by ordinances defining and penalizing them. 3. CONSTITUTIONAL LAW 165 - OBLIGATION OF COntract.

An ordinance making it an offense to operate a house of prostitution and prescribing the penalty therefor and under which the mayor may order the occupants to remove does not in any manner impair the obligation of a contract. 4. CONSTITUTIONAL LAW 104 VESTED

RIGHTS.

which she was the owner, after having been served by the mayor of the city with notices to remove.

Defendant demurred to the nine affidavits just referred to, in which she assailed the validity and constitutionality of the ordinance, particularly sections 3, 4, 6, and 7, on the following grounds:

"(a) That the said ordinance does not grade the misdemeanor or minor offense sought to be defined by its terms, nor fix a maximum penalty therefor, in violation of the provisions of the Constitution of Louisiana.

"(b) That the said ordinance impairs the obligations of contract, and will divest the vested rights of defendant to her property for other than public utility, and amounts to a taking of her property without adequate compensation being first paid, in violation of the provisions of the Constitution of Louisiana and article 14 of the Constitution of the United States.

"(c) That the said ordinance is unreasonable, harsh, and discriminating, and under pretext of a due exercise of the police power denies to her the Constitution of Louisiana and that of the the equal protection of the laws, in violation of United States of America.

"(d) That said ordinance and its methods of execution, as appears from the multifarious criminal charges pending here in court, deprive petitioner of her liberty without due process of law, and abridges her privileges and ties therefor, in violation of said Constitution

of Louisiana and of the United States.

Such ordinance was not harsh, unreasonable, and discriminating, so as to deny the accused to equal protection of the laws in violation of the state and federal Constitution. 6. CONSTITUTIONAL LAW 257-DISORDERLY CONDUCT2-"DUE PROCESS OF LAW." The proceeding by affidavit against the person charged with having committed an offense is "due process of law."

Appeal from Recorder's Court of New Orleans; Louis Burthe, Jr., Recorder.

Lulu White was convicted on affidavits charging the keeping of a house of prostitution, and she appeals. Affirmed.

Louis H. Burns and J. F. Anderson, both

of New Orleans, for appellant. John J. Reilley, Asst. City Atty., and I. D. Moore, City Atty., both of New Orleans, for appellee.

SOMMERVILLE, J. Lulu White was charged in two separate affidavits, filed in the Second recorder's court of the city of New Orleans, with violating section 1 of ordinance numbered 4656, C. C. S., relative to operating a house of prostitution or assignation at the premises 235 North Basin street, in the city of New Orleans, on December 29, 1917, and January 9, 1918. The two cases were consolidated and tried at one time. She was convicted in both cases and sentenced, and she has appealed.

It appears from the record that defendant was also charged under seven other separate affidavits with having violated section 3 of the same ordinance, for failing to remove from the premises indicated, and of

"(e) That said ordinance is ultra vires of the power of the city of New Orleans, and would deprive defendant of her real property without lawful condemnation proceedings.

"(f) That the same, and more particularly sections 3, 4, 6, and 7 thereof, are null and void under article 7 of the Constitution of the United States, in that the defendant is denied the right of trial by jury where the value in controversy, i. e., the right to own, use, and dispose of her own property, consisting of real estate, exceeds the sum of $20, the value thereof being more than $25,000."

The demurrer appears to have been aimed at section 3 of the ordinance, which provides that the mayor may order the occupants of a house of prostitution to remove therefrom. But on the day following the filing of the demurrer the city attorney dismissed the seven affidavits relative to the

failure of the defendant to remove from the premises indicated; and they are not involved in these cases now under consideration.

When the cases were called for trial un

der affidavits numbered 58124 and 58255, made under section 1 of the ordinance, prohibiting the keeping of a house of prostitution or assignation in the city of New Orleans, the prosecuting officer moved to amend said two affidavits so as to strike therefrom the words "immoral house," and to insert in their stead, "a house of assignation or prostitution," the words used in the ordinance, so that the affidavits read, with the exception of the respective dates of the offenses charged, as follows:

"That on Saturday the 29th day of December, 1917, at about 1:15 a. m., on premises 235 North Basin street, within the jurisdiction of this court, one Lulu White did then and

The amendments of the affidavits were made in open court, in due form, in the presence of the defendant, and without protest

or objection on her part. The case was called for trial, and the demurrer, copied above, was taken up and disposed of adversely to defendant.

[2] (a) The first ground of the demurrer, that the ordinance does not grade the misdemeanor, is without merit. The law does not require that municipalities should grade misdemeanors or minor offenses.

[3, 4] (b) The next objection to the ordinance is that it impairs the obligation of a contract and will divest defendant of vested rights in her property for other than for purposes of public utility, and amounts to taking her property without an adequate compensation being first paid.

The affidavits against defendant charge her with having violated a municipal ordinance relative to keeping a house of assignation or prostitution, and that does not in any manner impair the obligation of a contract, or divest her of any vested rights in the real estate which she owns and occupies.

[5] (c) The charge is made that the ordinance is unreasonable, harsh, and discriminating, and that she is thereby denied the equal protection of the laws in violation of the Constitution of the state and the United States. No argument was presented in support of this proposition, and it is without merit.

[6] (d) The next objection is aimed at the ordinance and its method of execution, "as appears from the multifarious criminal charges pending here in court," and that it deprives petitioner of her liberty without due process of law, and abridges her privileges and immunities without limitation upon the penalties therefor.

The argument was made that the section containing the penal clause is illegal, null, and void, because it is not clear; that it is confusing; that it cannot be enforced with reference to the other sections of the ordinance. There is no break between section 1, stated above, and section 6, which is here produced:

"That any person who shall violate any of the by the recorder having jurisdiction, for the first provisions of this ordinance shall be punished offense by a fine of not less than $25.00 and in default of payment by imprisonment not exceeding thirty days, and for the second and each subsequent offense by a fine of $25.00 and imprisonment for thirty days, each day's violation constituting a separate and distinct offense."

Admitting, for the moment, that other sections of the ordinance are illegal, the two sections, 1 and 6, completely define a misdemeanor and provide a penalty for the commission thereof. In the case of State v. Riley, 49 La. Ann. 1617, 22 South. 843, it is said in the syllabus:

"The first section of a municipal ordinance declaring it unlawful for any person to keep a lottery office being plain and legal, the defendant condemned under this section is without right to sustain an objection of illegality of the whole ordinance on the ground that the second section is unconstitutional."

The proceeding by affidavit against a person charged with having committed an offense is due process of law. The point is without merit.

The demurrer was properly overruled. [1] It was argued in this court that sections 3, 4, 6, and 7 of the ordinance were unconstitutional, illegal, null, and void, and that the nullity of these sections carried with it the nullity of the entire ordinance.

The affidavits under consideration were made against the defendant under section 1 of the ordinance, and not under section 3, 4, or 7. Seven other affidavits were made against her under section 3 of the ordinance,

page 213 is made to a section of the Criminal Code of Illinois, which provides:

"If any person shall hereafter harbor or secrete any negro, mulatto, or person of color, the same being a slave or servant, owing serv ice or labor to any other persons, whether they reside in this state or in any other state, or territory, or district, within the limits and under the jurisdiction of the United States, or shall in any wise hinder or prevent the lawful owner or owners of such slaves or servants from retaking them in a lawful manner, every person so offending shall be deemed guilty of a misdemeanor, etc., it was held, although the latter portion of the section was void within the decision of Prigg v. Pennsylvania, 16 Pet. 539, 10 L. Ed. 1060, yet that the first portion. being a police regulation for the preservation of order in the state, and important to its well-being, and capable of being enforced without reference to the rest, was not affected by

The learned author proceeds to say:

"The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separate, so that the first may stand though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained."

So that if the sections of the ordinance that were objected to were stricken out, sections 1 and 6 would be complete in themselves, and capable of being executed, wholly independent of those sections which were rejected.

Sections 1 and 6 of the ordinance are valid. Section 6 contains the only penal clause in the ordinance, and it refers to every section contained in said ordinance, by providing that a violation of any one section shall be punished in the manner stated in section 6. There is no conflict in the penalties imposed under the ordinance, and there is no confusion.

Section 1 of the ordinance is separate and distinct from the other sections, except section 6. These two sections are separable from the other sections, and they are complete in themselves; the one defining the offense, and the other providing the penalty.

The convictions of defendant must stand. The judgment appealed from is affirmed.

(143 La. 493)

No. 22480.

TOWN OF WINNFIELD v. COLLINS. (Supreme Court of Louisiana. May 27, 1918.)

(Syllabus by Editorial Staff.)

On Motion to Dismiss Appeal.

3. MUNICIPAL CORPORATIONS 449(2)-PAVING IMPROVEMENTS - ORDINANCE ASSESSMENT "AFTER THE CONTRACT HAS BEEN AWARDED.

Under Act No. 147 of 1902, § 2, providing that after the contract has been awarded the council shall provide by ordinance for an assessment of all the realty abutting a sidewalk, Curbing, or portion thereof to be paved or improved, the assessment is not illegal because the ordinance levying it was not enacted before the council ordered the paving and curbing to be done; the term "after the contract has been awarded" meaning after ordering the work to be done, and the expression, "abutting the sidewalk, curbing or portion thereof to be paved or improved," being only descriptive or indicative of the property on which the assessment is to be levied.

4. MUNICIPAL CORPORATIONS 339(2)—PavING IMPROVEMENT ASSESSMENT-VALIDITY -"ONE YEAR FROM THE TIME THAT THE CONTRACT IS AWARDED.'

An assessment for a paving and curbing improvement is not invalid because the ordinance calling for bids declared that the contract would be let for work to be completed within one year from the time the contract was awarded, where the contract date allowed the contractor one year from the date thereof in which to complete the work; the term "one year from the time that the contract is awarded" properly meaning, not one year from the time of accepting a bid, but one year from the date of the contract to be signed. 5. APPEAL AND ERROR 173(15)—REVIEW—

OBJECTION BELOW.

A contention by defendant in a town's suit for the benefit of a paving contractor that the work was not completed within one year from the date of the contract cannot be considered, where it was not urged in defense to the suit. CORPORATIONS 6. MUNICIPAL 568(3) COMPLETION OF IMPROVEMENT-TIME-EVI

DENCE.

Such contention held not supported by the evidence.

Monroe, C. J., dissenting.

Appeal from Fifth Judicial District Court, Parish of Winn; Cas Moss, Judge.

Suit by the Town of Winnfield against A. P. Collins. Verdict for plaintiff, judgment in rem, and defendant appeals. Motion to dis

A suit in which the constitutionality or legality of a local assessment or forced contribution is contested, though the amount sued for is less than $2,000, is within the Supreme Court's jurisdiction, given by Const. art. 85, of all cases in which the constitutionality or legality of any "tax, toll or impost" is in contestation, regardless of the amount involved.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Tax.]

2. MUNICIPAL
STREET PAVEMENT
ASSESSMENT
PLAIN.

Huey P. Long, of Winnfield, for appellant. Earl E. Kidd, of Winnfield, Stubbs, Theus, Grisham & Thompson, of Monroe, and R. W. Oglesby, of Winnfield, and Howe, Fenner, Spencer & Cocke, of New Orleans, for appellee.

On Motion to Dismiss Appeal. O'NIELL, J. This is a suit to enforce a local assessment for sidewalk paving and curbing.

After the rehearing was granted in this case, the appellee moved for a dismissal of the appeal, for want of jurisdiction of the matter in contest.

On The Merits.

preme Court shall extend to all cases in which the constitutionality or legality of any tax, toll, or impost whatever shall be in con

testation.

The motion to dismiss the appeal is found ed upon the decisions of this court in City

of Lafayette v. Male Orphan Asylum, 4 La. Ann. 1, Rooney v. Brown, 21 La. Ann. 51, and Board of Levee Commissioners v. Lorio Bros., 33 La. Ann. 276, where it was held that a forced contribution or local assessment, such as the plaintiff is attempting to enforce in this case, was not a "tax, toll or impost," within the constitutional provision giving the Supreme Court jurisdiction of all suits contesting the constitutionality or legality of any tax, toll, or impost whatever. The decisions relied upon by the learned counsel for appellee were approved a number of times, particularly in the following cases, viz.: Morgan's L. & T. R. & S. Co. v. Board of Health, 36 La. Ann. 669; Police Jury v. Mitchell, 37 La. Ann. 45; Charnock v. Levee District, 38 La. Ann. 325; Excelsior Planting & Mfg. Co. v. Green, 39 La. Ann. 460, 1 South. 873; Barber Asphalt Paving Co. v. Gogreve, 41 La. Ann. 251, 5 South. 848; Munson v. Board of Commissioners, 43 La. Ann. 22, 8 South. 906; and Minor v. Daspit, 43 La. Ann. 338, 9 South. 49. But, in State ex rel. Hill v. Judges of the Court of Appeals, 46 La. Ann. 1292, 16 South. 219, all of the foregoing decisions on the subject were, in effect, overruled. It was said by the then Chief Justice, delivering the opinion for the court, that the previous decisions to the contrary had to yield to the conclusion then reached; and, in a concurring opinion, it was said of the doctrine announced in Board of Levee Commissioners v. Lorio Bros., 33 La. Ann. 276, that it could not be followed.

The doctrine of State ex rel. Hill v. Judges, etc., has been adhered to consistently since that decision was rendered, as appears from the list of decisions quoted in the latest ruling on the question, in Town of Minden v. Stewart et al., 142 La. 468, 77 South. 118. The writer of this opinion dissented from the ruling in the case last mentioned, because of his opinion that it was not the constitutionality or legality of the tax itself, but the legality of the method of assessment, that was in contest. But there has been no departure from the doctrine, since the decision in State ex rel. Hill v. Judges, etc., that a suit in which the constitutionality or legality of a local assessment or forced contribution is contested, as in this case, is within our jurisdiction of cases in which the constitutionality or legality of any tax, toll, or impost whatever is in contestation, regardless of the amount involved. The motion to

the minutes of the meeting at which the ordinance was adopted. There was no such defect in that ordinance, or in the record of its adoption. It was the ordinance accepting the work and levying the assessment, on the adoption of which the clerk neglected to record the yea and nay vote in the minutes of the meeting at which it was adopted. The error, or omission, and subsequent correction, of the record of adoption of that ordinance did not injure the defendant or operate to his prejudice in any way; and we see no reason for holding that he should profit by the neglect of the clerk or secretary of the municipal council to perform his official duty, to record the yea and nay vote, at the proper time. The principle seems well established that, if the party complaining of such an omission on the part of the secretary or clerk of a municipal council is not worse off as a result of the error or omission and subsequent correction of the minutes, the correc tion should have the same effect as the recording of the yea and nay vote at the proper time would have had. See Dillon on Municipal Corporations (4th Ed.) vol. 1, par. 291; McQuillin on Municipal Corporations, vol. 11, pars. 525 to 628; City of Logansport V. Crockett, 64 Ind. 319; Boston Turn. Co. v. Pomfret, 20 Conn. 590; City of Pineville v. Burchfield (Ky.) 42 S. W: 340; White v. Town of Clarksville, 75 Ark. 340, 87 S. W. 630; Ryder's Estate v. City of Alton, 175 Ill. 94, 51 N. E. 821; Webb v. Strobach, 143 Mo. App. 459, 127 S. W. 680.

vote on the ordinance was not entered on

The decision in Town of De Ridder v. Head, 139 La. 840, 72 South. 374, relied upon by the defendant as authority for the proposition that a correction of the minutes of a municipal council meeting cannot have a retroactive effect, is not authority on the question one way nor the other. In that case there was no correction of the minutes, and therefore no question as to the date from which the correction would have taken effect if a correction had been made. The minutes did not show that the ordinance in question had been adopted by a yea and nay vote; hence there was no evidence that it had been so adopted, as required by section 33 of Act No. 136 of 1898.

[3] The defendant contends that the assessment is illegal because the ordinance levying it was not enacted before the municipal council ordered the paving and curbing to be done. The argument is founded upon an expression of opinion in the case of Town of Rayne v. Harrel, 119 La. 656, 44