
    No. 14,266.
    Donat Pucheu vs. Town of Jennings.
    Syllabus.
    In a case to which a municipal corporation is a party and where the questions to be determined affect the police regulations of a community, some latitude will be allowed in the interest of the public, and where the corporation has failed to establish an important fact by reason of incompetent evidence, and it is apparent that competent evidence is obtainable, the case will be remanded.
    APPEAL from the fifteenth judicial district, parish of Calcasieu. —.Miller, J. ...
    
      Fournet & .Fournet, for plaintiff, appellant.
    
      Cline & Cline, for defendant, appellee.
   The opinion of the court was delivered by

Monroe, J.

Plaintiff filed this suit, September 14th, 1901, alleging that he was, at that time, and had been, -since the month of February, keeping a barroom in the town of Jennings; that, for the year 1901, he had paid federal, state, and parish licenses therefor, and had conducted the business in an orderly manner “in no way contravening any lawful ordinance of the town,” but that the -town, “through its mayor and aldermen, had, in violation .of his legal and constitutional rights, forcibly hindered and interfered with him” by unlawfully issuing a warrant for his arrest in an attempt to impose upon him an excessive fine, and threatened to incarcerate him in a calaboose, * * * forcing him to employ counsel to defend his just rights,” etc., thus inflicting great damage on him; and that, unless restrained, the town would continue in its unlawful course to his irreparable injury; and he prayed for an injunction restraining said town .and its officers from interfering with -him in the conduct of his business, arid for judgment making the same perpetual and awarding him damages in the sum of $2000. The defendant, town, excepted that the court was without jurisdiction ratione materiae et personae, and that the petition disclosed no right, -or cause, of action. It admitted that the plaintiff was conducting a barroom, as alleged by him, and it is averred that, by the wrongful issuance of the injunction, he had been enabled to do so in violation of a v-a-lid ordinance of the town, thereby preventing the town from collecting fines, to the amount of $100 a day 'from the date of the issuance of the writ, and subjecting it to an expense of $250 as the fee .of its attorney, employed to obtain the dissolution of said writ; and it prayed that the injunction be dissolved, the suit dismissed, and the plaintiff condemned in damages. The exceptions were referred to the merits, but, -after trial on the merits, the exception to jurisdiction was maintained to the extent that the injunction was dissolved and the plaintiff condemned to pay $250 as attorney’s fees.

The decree do.es not reject the plaintiff’s demand for damages or dismiss the suit, it merely dissolves the injunction and condemns him to pay to the defendant $250, as attorney’s fees, with costs. We should suppose that this was,inadvertence if it were pot for the fact that counsel for defendant states, in his brief, that the judge “before signing the judgment erased “the clause) 'the plaintiff’s demand for damages is dismissed/ leaving the judgment as it is in the record.’’ The defendant has, therefore, filed an answer to the appeal praying ¡that the judgment be amended “by the addition of a decree dismissing the plaintiff’s demand with costs and increasing the damages allowed defendant, in accordance with its demand in reconvention.”

The evidence shows that the plaintiff had paid- the state $100 and the parish of Calcasieu $300, as licenses for the business of retail liquor dealer for the year 1901, and that he had, also, paid a license to the United States. It further shows that he was conducting that business in the town of Jennings prior to the 15th of August, that on that day he was ordered by the town marshal who acted under instructions from the mayor, to close his establishment, that he complied with tbe order, and kept his place closed for a month, when he sued out the injunction in this case and reopened, and that he, thereafter, carried on his business and was so carrying it on at the date of the trial. It is not claimed that the business was a nuisance per se, or by reason of the manner in which it was conducted, the action of the mayor and the marshal being predicated entirely upon an ordinance, prohibiting the selling or giving away of spiritous liquors within the limits of the town, under penalty of fine, or imprisonment, or both, which was adopted by the town authorities July 9th, to go into effect August 15th, 1901. Objection was made to the character and sufficiency of the evidence offered to show the adoption and publication of this ordinance, and so far as it related to the adoption of the ordinance, was properly overruled, as the minutes of the mayor and aldermen and the ordinance book of the town were offered and show authority for the prohibition ¡and compliance with law up to that point. See. 11, §26 and Sec. 33, Act 136 of 1898. It was attempted to prove publication by oral testimony, and the objection was made, and sustained, that it was not the best evidence obtainable. The judge a quo, however, permitted the testimony to go in “to complete the record,” and, thereafter, as we assume, considered it for the purposes of his judgment. The objection was well made and properly sustained as the evidence indicates that the office of the newspaper in which the publication is said to have been made was easily accessible, and no reason was given why such publication should not have been proven by its files. The law applicable to the publication provides that “All ordinances * * * shall, as soon as practicable after they are passed, be published in some newspaper of .the municipality, or, if there be no such newspaper, iby posting at three or more public places within the corporate limits, for three weeks, and ordinances shall not be enforced unless, for cause, the contrary be ordered, for one month after their passage.” Sec. 33, Act 136 of 1898. The publication was, therefore, as much a condition precedent to the enforcement of the ordinance as its adoption. A municipal court may take judicial cognizance of an ordinance of the municipality in which it exercises jurisdiction, but such ordiances must be proved in state courts of general jurisdiction, State ex rel. Cotonio vs. Judge, 105 La. 758. And, in order to prove them, it is necessary to show, in the manner required by the rules of evidence, that the law under the authority of which they are to be enforced has been complied with, at least to the extent that they have been adopted and made executory. This has not been done in the instant case, and we are, therefore, constrained to hold that the authority of the mayor and marshal, to interfere with the plaintiff hi the conduct of what, for aught that appears from evidence, properly-admitted, or admissible, was a lawful business, has not been shown.

There is, however, enough in the record to satisfy us that it is more than probable that the ordinance in question was published as the law requires, and as we are dealing with a municipal corporation in a matter affecting a police regulation of a community, we find ample authority in our jurisprudence for remanding the case in order that it may be more satisfactorily presented. Millaudon vs. 1st Municipality of New Orleans, 1st Ann. 215; Delabigarre vs. 2nd Municipality of New Orleans, 3 Ann. 230; Brown vs. Police Jury of Madison, 4 Ann. 180; Police Jury vs. McDonough, Ib. 352; Canal Co. vs. City, 44 Ann. 394; City vs. Werlein, 50 Ann. 1256.

It is, therefore, ordered, adjudged, and decreed, that the judgment appealed from be reversed and that the case be remanded for further proceedings according to law, the defendant and appellee to pay the costs of the appeal.  