LOUISIANA SUPREME COURT. STATE OF LOUISIANA V. A PPEAL by defendant from a judgment of the Recorder's Court for the City of New Orleans convicting and fining him for the violation of a city ordinance forbidding owners of bake-shops to maintain a well on their premises. Affirmed. The facts are stated in the opinion. Messrs. A. A. Ker and Joseph Duvig. reaud for appellant. Mr. T. McC. Hyman for appellee. *Head notes by FENNER, J. NOTE.-Police power of State is supreme. The power of the State over its police regulations is supreme. Slaughter-House Cases, 83 U. S. 16 Wall. 2, 21 L. ed. 404; Bartemeyer v. Iowa, 85 U. S. 18 Wall. 133, 21 L. ed. 930. It is limited only by express prohibitions in the Federal Constitution. State v. Kansas City, Ft. S. & G. R. Co. 32 Fed. Rep. 722. The Fourteenth Amendment does not take from the States those powers of police that were reserved at the time the original Constitution was adopted. Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205. It does not interfere with the exercise of the police power by the State for the protection of health and the prevention of fraud. Powell v. Pennsylvania, 127 U. S. 678, 32 L. ed. 253; Walker v. Pennsylvania, Id. 699, 32 L. ed. 261. Power, where lodged. It belongs to the Legislature to exercise the police power of the State, subject to the power of the courts to adjudge whether any particular law is an invasion of rights secured by the Constitution. Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205: Lake View v. Rose Hill Cemetery Co. 70 Ill. 191; Daniels v. Hilgard, 77 Ill. 640. The National Congress cannot make police regulations for the protection of the people of the States. New v. Walker, 6 West. Rep. 871, 108 Ind. 365; Hockett v. State, 2 West. Rep. 770, 105 Ind. 250. State legislation under the police power infringes the constitutional guaranty of protection in liberty and property only when it is extended to subjects not within its scope and purview, as that power was defined and understood when the Constitution See also 10 L. R. A. 158. Fenner, J., delivered the opinion of the court: Defendant appeals from a conviction and sentence on a charge of violating a city ordinance containing the following provisions: "(1) that it is hereby made unlawful to excavate or sink a well on any premises used as a bakery or bake-shop, within the city limits; (2) that, upon any such premises where a well now exists, it shall be the duty of the owner of the property to cause same to be immediately filled up to the surface of the ground." Defendant admits that he owns premises which he uses as a bakery, and that he has thereon a well eighteen feet deep, the water of which he uses in making up the bread which he sells to his customers; that he had been duly notified by the proper authority to fill the well, and had refused to do so. The sole issue is as to the legality and constitutionality of the ordinance, which he assails on two grounds: (1) that it operates as a taking of property without due process of law, and without adequate compensation, in violation of the Constitutions of the State and of the United States; (2) that it is class legislation, discriminating without reason against a particular class of citizens. 1. The proposed suppression of the well on defendant's premises is not an exercise of the right of eminent domain by taking private property for public use without just compensation, or due process of law, within the purview of the constitutional provisions above referred to. It is a distinct exercise of the police power, as to which we have heretofore said: "It is universally admitted that, however broadly was adopted. People v. Budd, 5 L. R. A. 559, 117 N. Y. 1. Such legislation is not open to the charge of depriving one of his rights without due process of law, if it be general in its operation upon the subjects to which it relates, and is enforceable by usual methods adapted to the nature of the case. Dent v. West Virginia, 129 U. S. 114, 32 L. ed. 623. Extent of its exercise. pression of nuisances, the preservation of the health, good order and morals of the public, and cannot be irrevocably granted away for any purpose, however meritorious, or for any consideration, however valuable. Justice v. Com. 81 Va. 209; People v. Squire, 10 Cent. Rep. 442, 107 N. Y. 593. The police power of a State extends to the sup It extends to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the State. Missouri Pac. R. Co. v. Finley, 38 Kan. 550; People v. Phippin, 14 West. Rep. 247, 70 Mich. 6; Robison v. Miner, 68 Mich. 549, 13 West. Rep. 486; Marmet v. State, 9 West. Rep. 452, 45 Ohio St. 63; People v. Squire, 10 Cent. Rep. 442, 107 N. Y. 593; St. Johnsbury v. Thompson, 4 New Eng. Rep. 512, 59 Vt. 300; Boston & M. R. Co. v. County Comrs. 4 New Eng. Rep. 660, 79 Me. 386. It may not be arbitrarily or capriciously exerercised, and never for purposes other than the protection of the people and the suppression of evils threatening subversion of the peace, comfort and good morals of the people and their quiet and full enjoyment of property. Pearson v. International Distillery, 72 Iowa, 348. The law will not allow the rights of property to be invaded under the guise of a police regulation these principles may be expressed, there exists, | all private premises; . . . (d) to suppress all ex necessitate rei, in every government, the nuisances; (e) to prevent the sale of adulterpower to impose restrictions upon individual ated or decayed food, and to punish the rights of life, liberty and property, which it is same." not within the meaning or intent of such provisions to prohibit or restrain. . . . So uni versal and long-continued has been this construction of constitutional inhibitions against governmental deprivation of life, liberty and property of citizens, that it may now be considered as written into every Constitution." State v. Parish of Orleans, 39 La. Ann. 138. If, then, the ordinance under consideration is a proper and lawful exercise of the police power, the constitutional inhibitions invoked have no application thereto; if it is not such an exercise of that power, there is no other ground on which it can stand for a moment. The Legislature has delegated to the City of New Orleans very extensive police powers, as appears from the following section of the charter (Act 20 of 1882): "Sec. 7. The council shall have power, and it shall be their duty, to pass such ordinances and to see to their faithful execution as may be necessary and proper; . . . (2) To maintain its [the city's] cleanliness and health, and to this end. . . (b) provide for the inspection and cleanliness of all vaults, privies, yards, pools, markets, cemeteries; (c) to regulate the location of and inspection and cleansing of dairies, stables, cattle yards, landings and pens, slaughter-houses, soap, glue, tallow and leather factories, depositories for bides, and all places or business likely to be or become detrimental to health, and to adopt such ordinances and regulations as shall be necessary or expedient for the protection of health, and to prevent the spread of disease, and to maintain a good sanitary condition in the streets, public places and buildings, and on for the protection of life, when it is manifest that such are not the object and purpose of the regulation. Millett v. People, 5 West. Rep. 157, 117 Ill. 294. Duty in its exercise is all-pervading. The duty of the State in the exercise of its police power is all-pervading. It extends alike to city, town and country. It looks to the preservation of order and security in the State at elections and at all public places; the 'protection of citizens, strangers, travelers at railway stations, at steamboat landings; the enforcement of the laws against in temperance, gambling, lotteries, violation of the Sabbath, and, in fine, the suppression of all those disorders which affect the peace and dignity of the Stateland the security of the citizen. The instrumentalities by which these objects are effected are, however appointed, by whatever name called, agencies of the State and not of the municipalities for which they are appointed or elected. State v. Hunter, 38 Kan. 578. The motive and object of the ordinance in question are very patent, and suggest themselves at first blush to the most casual reader. They are to prevent the use of well-water in the making of bread by bakers who make bread for sale to the public, and, as a means to that end, to prevent the construction or maintenance of such wells on premises used for such purpose. The evidence of medical and scientific experts found in this record makes it very clear that water from wells in this city is absolutely unfit for potable or cooking purposes; that it is impure, highly polluted with fecal and other foul matters, full of germs of disease, and that its use in the baking of bread is dangerous to health. The primary purpose of the Act, therefore, viz., the prevention of the use of such water for such purpose by persons who make bread for public distribution and consumption, falls within the clearest and most essential function of the police power,— the preservation of the public health. It is not, perhaps, for us to say whether the means adopted to accomplish this purpose are the best and most efficient and least injurious to private interest. These are matters of legislative determination. It is sufficient, for ju dicial satisfaction, if the meaus are appropriate to the end, will operate towards its accomplishment, are so intended in good faith and are not unwarrantably and unnecessarily oppressive. We think the means here adopted exhibit all these features. If bakers, who either do not believe well-water to be injurious, or who do not care whether it is injurious or not, have wells upon their premises, they are likely | Even the sale of pure milk and pure water mixed together may be prohibited as an adulterated article of food. Com. v. Farren, 91 Mass. 489; Com. v. Waite, 93 Mass. 264. The mere fact that experts may pronounce & manufactured article intended for human food to be wholesome or harmless does not render it incompetent for the Legislature to prohibit its manufacture. State v. Addington, 77 Mo. 110. The requirement of Minn. Gen. Laws 1889, chap. 7, §§ 1, 2, relating to the adulteration of food, that baking powder containing alum be marked so as to show that fact, is constitutional, and its validity is not dependent upon or affected by the validity of other sections of the Act. Stolz v. Thompson (Minn.) Aug. 19, 1890. The health laws of the State are not necessarily antagonistic to the exercise by the municipality of power to regulate and repress noxious and offensive creations of a public character within the township. State v. Lowery (N. J.) 6 Cent. Rep. 830. N. Y. Laws 1884, chap. 202, § 3, making the carry The police is a matter of state instead of local ing and selling to cheese factories of diluted milk concern; and, while the power may be intrusted to to be manufactured into butter and cheese a crimlocal municipal agencies and officers, it is never-inal offense, was not repealed by N. Y. Laws 1885, theless a matter of state policy and subject to immediate state control. Ibid. Protection of health within the police power. The power of the Legislature to enact laws for the protection of the public health, or to prevent the adulteration of food and the imposition or fraud in the sale of such article, is within the police power of the State. Powell v. Com. 5 Cent. Rep. 890, 114 Pa. 265. 10 L. R. A. chap. 183, but was continued in force so far as necessary to punish crimes committed under the Act of 1884. People v. Harris, 33 N. Y. S. R. 168. The compounding or putting up for sale any food, drug or liquor. with any label, mark or device, with intent to mislead or deceive, for which Wis. Laws 1879, chap. 248, § 3, provides a penalty not to exceed $500 for the first offense, is not a misdemeanor. State v. Grove (Wis.) Sept. 23, 1890: See note to Atkins v. Phillips (Fla.) post, 158. 4. It is the mandatory duty of the re- 5. The action of the recorder, however favorable to an accused, cannot relieve to use it. Such is the actual case of defend- 2. The objection that this is class legislation has no force. As said by the Supreme Court of the United States: "The discriminations which are open to objection are those where persons engaged in the same business are subjected to different restrictions, or are held entitled to different privileges under the same conditions. It is only then that the discrimination can be said to impair that equal right which all can claim in the enforcement of the laws." Soon Hing v. Crowley, 113 U. S. 705, 28 L. ed. 1146. And again: "Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operations it affects alike all persons similarly situated, is not within the Amendment." Barbier v. Connolly, 113 U. S. 27, 23 L. ed. 923; Minneapolis & St. L. R. Co. v. Beckwith, 129 U. S. 26, 32 L. ed. 585. The ordinance, in this case, covers all persons engaged in the same business with defendant and similarly situated. Judgment affirmed. 6. The recorder, although bound to proceed with the pending prosecution, may nevertheless, on proper showing, after the case shall have been fixed for examination, continue the same for any valid cause, in the exercise of a sound legal discretion. and on the record must be allowed. (November 17, 1830.) PETITION for a writ of maramus to com- The facts are stated in the opinion. Messrs. Lionel Adams, A. D. Henriques The remedy is mandamus, because: 2. Petitioners have a clear, legal right which High, Extr. Legal Rem. § 10; Heard's Shortt, 3. Petitioners invoke the writ to compel the Heard's Shortt, Extr. Legal Rem. p. 332; High, STATE of Louisiana, ex rel. Charles MA- G. R. Co. 101 U. S. 711, 720, 25 L. ed. 872. TRANGA et al., v. M. S. BRINGIER, Recorder of the First Recorder's Court of the City of New Orleans. (....La.....) 1. The fact that the grand jury is investigating a charge of murder against accused, in custody without the benefit of bail, is no justification for a recorder to decline to fix and examine the complaint before him. 2. Such investigation does not suspend the pending prosecution before the recorder. 3. While, under § 1010, Rev. Stat., justices of the peace have no authority to investigate such charges, the same being vested in district judges only, the recorders of the City of New Orleans, under previous laws, under the Constitution and the city charter, are empowered to do so. *Head notes by BERMUDEZ, Ch. J. Bermudez, Ch. J., delivered the opinion of the court: This is an application for a mandamus to compel the hearing and determining of a case by the defendant. The relators complain that they are detained in custody, and restrained of their liberty without benefit of bail, on a complaint against them before the Recorder on oath, as accessories before and after the fact, to the murder of one Hennessey; that their case was fixed for examination on the 28th of October past, but was then continued, without day, at the request of the district attorney; that, on the 7th of November following, the relators, through counsel, moved to have their case fixed, heard and acted upon, but that the Recorder declined to appoint a day; that, under the Constitution and the laws, they are entitled to a speedy trial, and to have said case fixed, heard and determined. They therefore pray that said Recorder be commanded to fix, hear and dispose of said sary. case according to law. The return admits the | is section 1010 of the Revised Statutes, is a genaverments of fact, and sets forth that the re- eral statute apparently designed to operate spondent acted as charged, for the reason that throughout the State, except in the City of it was to his personal knowledge that the grand New Orleans, and did not propose to repeal the jury was investigating the matter. In justifi- Act of 1859. Act 95 of 1873 continued those cation of this refusal, it is contended that a pre- powers in the police courts thereby created. liminary examination before a committing mag- The Constitution of 1879 contains two articles istrate is not a prerequisite to a prosecution (126 and 136) bearing on the subject. The for crime; and that, except by force of some former alludes to ordinary justices of the peace, statutory provision not found generally in our as said in 34 La. Ann. 52, while the latter refers States, the preliminary examination is unneces- to police or magistrates' courts, which the Legislature is authorized to provide for, and to vest with the jurisdiction of committing magistrates free from the restrictions contained in article 126. Acting under that authority, the Legislature in 1882 gave a charter to the City of New Orleans, in which recorders, such as had always existed, are recognized, and by which they are said to be vested with the jurisdiction of committing magistrates. The custom has always been in all cases for the recorder to investigate the complaint, taking the testimony in writing, and almost invariably, except in palpably groundless accusations, to transmit the same to higher authority for further action. State v. Ozer, 5 La. Ann. 746. It is also advanced that the grand jury, acting under the obligation of their oaths, must determine, as cases are presented, whether they will or not act upon them prior to an examination before a magistrate, and while such examination is pending; and that, were it other wise, justice might be delayed and possibly defeated. The legal propositions contended for by the district attorney are well supported by authority. They are not and cannot be contested, but they have no bearing on the matter under consideration. They would be applicable, if there was no prosecution before the Recorder, and if the accused had objected to the proceed ings before the grand jury; but this they do not, and cannot do, because such prosecution exists, and they do not thus object. What the relators complain of is that the proceedings before the grand jury are made to suspend those before the Recorder, and they therefore claim that, notwithstanding the fact that the jury may be investigating the charges against them, the Recorder is bound to go on with the prosecution before him. The relators claim that the recorder should so proceed, because of the provisions of 1010, Rev. Stat. If that were the only legislation on the subject, the relators would not be entitled to relief, for the reason that, under its very terms, the investigation must be conducted by the district judge, and not by the committing magistrate, where he is nothing but a justice of the peace. See State v. Liraudais, 34 La. Ann. 52. It is clear that, a complaint having been lodged and being pending before him, it is the duty of the Recorder to proceed with the same, as the law provides (4 Bl. Com. chap. 22), unless the State prefers to discontinue it, and leave the matter in the hands of the grand jury. We therefore conclude that, as the proceedings before the grand jury do not have the effect of staying the prosecution before the Recorder, it is his duty to proceed with the examination of the complaint. While it is true that the refusal to find a true bill by the grand jury may put an end to the proceedings before the Recorder, it is patent that, whatever the action of the latter may be, it cannot relieve the grand jury of their bounden duty and deprive them of their superior right to investigate and act upon the charges against the accused, nor to devest them of their power over the accused. As long as This is so because justices of the peace, under the grand jury has not discharged the accused, article 126 of the Constitution, have power to or the State has not discontinued the prosecubail or discharge only in cases not capital or tion before the Recorder, the accused have a necessarily punishable at hard labor. In the right to demand that the latter shall proceed to case cited we said: "The sole object of a examine their case. Otherwise, the rights of preliminary examination being to determine the accused may be imperiled or destroyed, and whether a party shall be discharged, bailed or the ends of justice frustrated. While ruling as held in custody, it would be absurd to have we do, we are not to be understood as saying such examination held before a justice of the that, although the Recorder be bound to propeace, in cases in which those magistrates ceed with the case before him, he shall have would have no power to determine those ques- no authority, after the case shall have been fixed tions." At all times, the recorders of the City for examination on a proper showing in the ex of New Orleans have been considered as vested ercise of a sound legal discretion, to allow a with powers more extensive than those con- continuance for any other valid cause. The ferred on justices of the peace clothed with application for relief is well founded, and, be. criminal jurisdiction. To place the subject being authorized by law, it must be allowed. It yond doubt, the Legislature in 1859, by Act is therefore ordered and decreed that the manda269, p. 210, specially provided that the several mus asked be made peremptory, and accordingly recorders for the City of New Orleans are an- that the respondent do fix and proceed, within thorized and required to take bail in all cases reasonable delay, with the case of State v. Rebailable under the Constitution and laws of the lators, pending before him, in conformity with State. The Act of 1868, No. 160, p. 206, which usage and law. 10 L. R. A. CALIFORNIA SUPREME COURT. Henry TOOMEY, Respt., v. SOUTHERN PACIFIC R. CO., Appt. (...... Cal.......) 1. A railroad company is not liable for running over and killing a trespasser, upon the track of the road, on a dark night, one hundred and fifty yards from the nearest public crossing, he not being seen or known to be on the track by any of the employés on the train which killed him. The facts that the engine drawing the train was in a reversed position, and had no headlight or cowcatcher on the tender, and that the bell was not rung or whistle blown at the crossing from which the train was coming, and that the train was a special train, do not render the company liable. 2. A railroad company does not owe to a mere trespasser upon its track the duty of doing acts to facilitate his trespass or render it safe, such as providing any particular kind of machinery or appliance for his benefit; or, when not aware of his presence, giving cautionary signals, to notify him of the approach of its trains, provided it exercises ordinary care after seeing him. 3. The duty imposed upon a railroad company by statute, of ringing the bell or blowing a whistle, is for the benefit of those who use the crossing, and who, in consequence, have a right to be upon the track. (November 12, 1890.) NOTE.-Railroad company, duty owed to intruders and trespassers. Except at public crossings, and within the limits of cities, towns and villages, a railroad engineer is under no obligation to maintain a special look-out for intruders or trespassers on the track, and is only bound to the exercise of reasonable diligence after they are discovered, or their peril becomes apparent, in the absence of some special fact or reason calling for greater diligence on his part. Bentley v. Georgia Pac. R. Co. 86 Ala. 484, citing Womack's Case, 84 Ala. 149; Blanton's Case, Id. 154; Donovan's Case, Id. 141: Philadelphia & R. R. Co. v. Hummell, 44 Pa. 375; Carrington v. Louisville & N. R. Co. 88 Ala. 472, 476. It is not negligence for the engineer of a railroad company not to look constantly in front of his engine, at a place where there is no crossing and where he has no reason to expect that persons will be on or along the track. Houston & T. C. R. Co. v. Smith, 77 Tex. 179. One walking upon a railroad track which the company has not licensed the public to make use of is a trespasser; and the company is not liable for his death because of a negligent act of the employés unless it was willful. Palmer v. Chicago, St. L. & P. R. Co. 11 West. Rep. 676, 112 Ind. 250; Gregory v. Cleveland, C. C. & I. R. Co. 11 West. Rep. 825, 112 Ind. 385. A railroad company is not liable for an injury to a man struck by the tender of an engine running backward through the country at a place where the road was straight and unobstructed, and who was walking upon the track as a trespasser, unless the employés of the company failed to use reasonable care to avoid the injury after discovering his peril. State v. Baltimore & O. R. Co. 69 Md. 494. A woman living at a section-house belonging to the railroad company, as a servant of the occupant, 10 L. R. A. "1. The plaintiff is the father of Henry Toomey, Jr., deceased, who was, at the time of his death hereinafter stated, a minor, of the age of eighteen years. "2. On the 21st day of October, 1884, defendant was a corporation, duly incorporated and doing business under the laws of the State of Callfornia, and was then and there the owner of a certain line of railroad on the west side of the Bay of San Francisco, from the City of San Francisco to the City of San José, in said State, and was engaged in operating the same. "3. On said date,' there was running on said Railroad from said City of San José, in a northerly direction toward the Town or station of Mountain View, a certain train of cars, carrying passengers, and propelled by a steam locomotive and tender, which train, locomomotive and tender were then and there owned a section-boss of the company, who was struck and killed by a passing train while crossing the track to reach the milk-yard belonging to the house, was a trespasser; and the company is not liable, although the train was at the time running at an unusual rate of speed, and no signal was given of its approach to the public crossing, a mile distant, or to a neighborhood crossing near by, or to the section-house. Shackleford v. Louisville & N. R. Co. 84 Ky. 43. A railroad company is not liable for the death of a boy who was on its cars or track as a mere intruder or trespasser, without the knowledge of the persons in charge of the train, where the death was caused by a harder jam than usual in coupling cars, at a place where the tracks were much used for the purpose of switching cars and making up trains. Williams v. Kansas City, S. & M. R. Co. 96 Mo. 275. A boy ten years of age, who is a trespasser walking between the parallel tracks of a railroad company, and who, to avoid some water lying between such tracks, steps upon the end of the ties and is struck by a car after walking three steps, cannot recover damages against the company. Mitchell v. Philadelphia, W. & B. R. Co. 132 Pa. 226. Company owes no higher duty to an inebriate than to a sober person. A railroad corporation owes no higher duty to a drunken trespasser than to a sober one, when it is without the means of determining whether he is sober or drunk. Columbus & W. R. Co. v. Wood, 86 Ala. 164. No recovery can be had for the death of a man struck by a railroad train, where he had driven along in the night for two miles on the railroad track, even if he was intoxicated and the railroad company was negligent in failing to keep the crossing at which he drove upon the track in proper con |