The New Orleans Bulletin

THE PRIVATE MARKET QUESTION.

The cases of Bernard Bernachau et als, came up Monday morning for decision by Judge Atocha, on the petition of defendants, praying for a writ of injunction, prohibiting the investigation by police magistrates of an alleged violation of Act 31, in relation to private markets. It was contended that cases under law were out of the jurisdiction of police courts, as under it proceedings could only be had by indictment by the Grand Jury. The Judge ruled that, although offenses under the law were indictable, it did not interfere with the powers of a police magistrate to make preliminary examination, although beyond this they could not proceed. He said, further: "The proper remedy, therefore, for the relators would seem to be to apply to a court of competent jurisdiction for an order restraining the Administrator of Commerce from executing the law. I cannot issue such an order; the proceeding against the Administrator of Commerce would necessarily be of a nature entirely within the jurisdiction of a court of exclusive civil jurisdiction."

In the case of the State of Louisiana on the relation of William Fagan, on an application for habeas corpus, and also for mandamus, and prohibition, the following decision was rendered: The relator has filed two petitions, which were heard together, one praying to be discharged from the custody of the Sheriff of the Criminal Court, in which he is held under a mittimus issued by the police justice of the First Municipal Police Court, charging him with a violation of the provisions of section 1 of Act No. 31, of 1874, relative to private markets in the city of New Orleans; as a reason for his discharge he urges that the magistrate erred in construing the business carried on by him as a private market; that he does not carry on private market as contemplated by the act, but carries on a wholesale business in fresh and pickled meats. There is no question of law involved in this application; it is simply a question of fact, viz: Does the relator carry on such a private market as contemplated by the law? It is clear to my mind that the intention of the Legislature was to prevent the carrying on of that general retail business which is carried on in the public markets of the city. The evidence before me does not show such to be the character of business carried on by the relator; he sells only meats, and at wholesale, and almost exclusively to one class of customers, the steamships, vessels and steamboats that land at this port. I am of opinion that the magistrate has not properly classified the business of the relator, and that he cannot be held for a violation of Act No. 31, so long as he confines himself to the character of business established by the evidence before me; I must therefore order him to be discharged from custody. The writs of mandamus and of prohibition I cannot grant; the parties against whom they are asked are not properly before me; the action complained of is not such as brings the parties within my jurisdiction.