For the reasons given hy the District Judge for the judgment from which this appeal has been taken, it is adjudged, and decreed that the said judgment be affirmed with costs.
REASONS OF JUDGMENT OF THE DISTRICT COURT..
The plaintiff has sued out a writ of injunction against the city corporation, in order to restrain the acts of the City Treasurer, by whom he was notified to pay $315, due for his house for keeping a drinking house, and in default whereof, that the drinking house shall be closed by the police, in virtue of a resolution of the City Council, approved the 16th July, 1852.
The plaintiff alleges that there is no Act of the State Legislature which authorizes such a summary proceeding on the part of the city authorities; and further, that the said tax is illegal and unconstitutional; and if found legal that the tax is not due before the 1st of May next.
The city has joined issue upon these points, and prays that the injunction be dismissed.
The right of the city government to fix a uniform price for the license to drink- . ing houses is clearly established by law.
The Act of 1805, section 11, provides that the Mayor shall give licenses for keeping houses under the restrictions to be imposed by the Council, and that ail grog-shop keepers, without a license, shall be prosecuted for a fine.
The Act of 1816, page 113, Rev Stat., provides that the city of New Orleans shall have the power to regulate anything which relates to grog-shops, etc.
The Act of March 5th, 1836 — the General Council shall have the power to fix uniform prices for licenses to grog-shops, etc.
From the early period of legislation in England the right of control of the police over taverns has been maintained. So the old Norman, cited by Britton, c. 30: Soil requis de tous iaverniers qui’onl vendu vins a Tencontré du droit d’assiee.
The colonial government of Louisiana, from the primitive police, maintained the same control over grog-ihops.
In 1751, at a time when the population of New Orleans numbered in all 975 persons, Governor Vaudreuil published an ordinance imposing an annual tax of 300 livres on every grog-shop, for the benefit of the church and of the poor; forbidding them at the same time to sell liquor on Sundays and holidays during the hours of divine worship. Gayarré’s Louisiana, vol. 2, page 42'.
The ordinance of Oreilly, of 1770, fixed at $50 the price of these licenses. Walker’s Dig., page 7.
The City Council of New Orleans in 1826 fixed the price of these licenses at $150 per annum. In the same ordinance it was-provided that every person intending to keep a grog-shop shall obtain from the Mayor a license, upon the recommendation of two respectable freeholders, and besides, he shall furnish a bond, with security, in the sum of one thousand dollars, to secure the payment of all fines for contraventions against the city ordinances. A. Dig City Laws, 1830, page 63.
Besides these salutary restrictions on grog-shop keepers, there exists a penal statute of the State. The Act approved 7th April, 1832, sec. 7, page 167, provides that no person shall be allowed to keep a grog or tipling-shop without previously obtaining a license from the Police Jury or city corporation, under penalty of being criminally prosecuted and being fined not more than $500, and in default of paying the fine and costs, of being imprisoned not more than four months.
It becomes then the duty of the District Attorneys throughout the State to cause to be arrested and tried all grog-shop keepers who have not obtained a license as aforesaid.
The Mayor and the Recorders, as ex-officio Justices of the Peace, may certainly exercise the power of arresting all persons found in contravention of the law.
This court therefore considers that the tax of $315, assessed by the Common Council upon all drinking houses, is fully authorized by law. Also that this tax, being uniform upon all similar establishments, is constitutional; that it was passed by the Council in the manner and form prescribed by law, and that it is payable by every grog-shop keeper', at any period of the year, on his being found not provided with the license required by law.
*324In icgaid, however, to 1l.e right v.hieli is chimed ly the city authorities to c'ose summarily the doors of drinking houses which are not licensed, this proceeding being a hard one, and derogatoiy to common right, requires for its justification to he supported by an express provision of law.
The statutes have given to the city against the refractory grog-shop keepers several remedies: first, by fines imposed; second, by suits for the recovery of the tax, and finally, by criminal prosecution.
Tne cily has by law the right of closing the doors of all theatres, ball-rooms, and other places of public exhibition, but nowhere in the statute books is to be found a provision for the application of this measure to grog-shops. For the better efficiency of the police in regard to those establishments, many of which are clens of murderers, rioters, drunken slaves, and clandestine gambling hells, it would probably be desirablo that this power be vested in the City Council.
The corporation, a; mere creature of the law, cannot exercise a power deroga-tord to any common right of citizens except by express grant from the sovereign power of the State.
The plaintiff has claimed no damages, and it is evident that, being himself an offender of the law for not taking a license, he could have claimed none.