Tanner v. Beverly Country Club

Under the well-settled jurisprudence, see Mongogna v. O'Dwyer,204 La. 1030, 16 So. 2d 829, 152 A.L.R. 162 and State v. Baggott,212 La. 795, 801, 33 So. 2d 523, the defendants have the right to attack the validity of Act No. 192 of 1920 if that statute, as contended for by them, is wholly unconstitutional.

I am also of the opinion that a consideration of Act No. 192 of 1920 in its entirety and the amendments thereto, particularly the amendment to Section 3 by Act No. 49 of 1938 and as finally amended and re-enacted by Act No. 120 of 1940, discloses an unmistakable intention on the part of the Legislature to grant to taxpayers of the State, 10 or more in number wherever domiciled, the right to file a suit to abate a gambling nuisance, as defined in the Act, in any district court of the State without restriction as to where the defendants reside or where the nuisance is maintained However, I cannot discern that this grant by the Legislature confers upon the district courts throughout the State any additional jurisdiction ratione materiae and is, therefore, violative of the provisions of Section 31 and 35 of Article VII of the Constitution, as claimed by defendants,¹ or, for that matter, any other constitutional provision, State or Federal.

Section 31 of Article VII of the Constitution provides that there shall be 26 judicial districts in the State, other than the Parish of Orleans, and enumerates the Parishes composing those districts. There is nothing contained therein relative to the jurisdiction of the district courts which are created.

Section 35 of the same Article, among other things, defines the jurisdiction of the district courts, excepting the Parish of Orleans, and declares that they shall have original jurisdiction in all civil matters regardless of the amount in dispute or the fund to be distributed "and in all cases where the title to real estate, or the right to office, * * * are involved, and in all cases where no specific amount is in contest * * *". It further provides for unlimited and exclusive original jurisdiction in all criminal cases, except as otherwise provided, and in all probate and succession matters, etc.

The grant of jurisdiction contained in Section 35 is a statement of the subject matter over which all district courts of this state are given authority to render judgment There is nothing which I have found (from a careful reading of numerous provisions of the Constitution) limiting the power of the Legislature to provide for the place in which civil actions may be brought. Accordingly, it is plain to me that counsel for defendants, in their claim of constitutional invalidity of Section 3 of Act No 192 of 1920, have confused jurisdiction ratione persona with jurisdiction ratione materiae or "venue" with "jurisdiction". The distinction between "jurisdiction" and "venue" is firmly established and has been often recognized. In 21 C.J.S. Verbum, Courts, § 15 c, page 33, the difference is stated thus: "Jurisdiction connotes the power to decide a case on the merits, while venue connotes locality, the place where the suit should be heard. The word `venue,' unless it is given jurisdictional effect by localizing the action, relates only to the place where or the territory within which either party may require the case to be tried, and unless it is a localized action, the question of jurisdiction of subject matter is not involved."

In the instant case, it cannot be gain-said that any one of the district courts of this state has jurisdiction to try a case involving the abatement of a nuisance — for, as above shown, Section 35 of Article VII of the Constitution vests in the district courts original jurisdiction in all civil matters regardless of the amount in dispute. Hence, the Legislature, in prescribing special civil remedies under Act No. 192 of 1920 for the abatement of a gambling house and authorizing a padlock penalty upon the owner of the establishment in certain instances, unquestionably had power to provide that such actions be brought in the district courts. The complaint of defendants, therefore, is not that district courts, as such, do not have jurisdiction but that the Legislature transcended its power in permitting taxpayers to bring suits of this sort in the district courts of their own choice and not necessarily in the district court of the Parish in which the defendant resides or in which the nuisance is maintained. But, in advancing this proposition, defendants are unable to point to any constitutional provision restricting the authority of the Legislature on this score. As a matter of fact, there are none as the provisions regulating the place where civil actions may be brought are not contained in the Constitution. They are to be found in the Code of Practice, Articles 162 through 168, Section 2 of Chapter 2 of Title I of Part II dealing with civil actions.² The general rule, Article 162, Code of Practice, is that, in civil matters, the defendant must be sued before his own judge. But that rule is subject to many exceptions and the Legislature is invested with plenary power to make such changes as it deems advisable, provided it does not violate any constitutional limitation on its authority.

The Supreme Court of the United States has many times recognized that the Congress (although clothed only with the authority given it by the Constitution) "clearly has the power to authorize a suit under a federal law to be brought in any inferior federal court" and also to provide "that the process of every District Court shall run into every part of the United States." See Robertson v. Railroad Labor Board, 268 U.S. 619, 622, 45 S. Ct. 621, 622, 69 L. Ed. 1119, 1121; see also Toland v. Sprague, 12 Pet., U.S., 300, 328, 9 L.Ed. 1093, 1104; United States v. Union Pac. R. Co., 98 U.S. 569, 604, 25 L. Ed. 143, 151 and Mississippi Pub. Corp. v. Murphree,326 U.S. 438, 442, 66 S. Ct. 242, 90 L.Ed 185, 190.

In United States v. Union Pac. R. Co. supra, defendant attacked a statute of 1873, 17 Stat. 509, which authorized the Attorney General to bring a suit against it "in the circuit court in any circuit" on the ground (among other things) that Congress was without constitutional power to permit the government to select its own tribunal before which it would litigate a particular case. The Supreme Court, after alluding to the general rule, recognized by Congress in the enactment of the Judicial Code, 28 U.S.C.A. that a defendant must be sued within the jurisdiction of his residence or where he is found, held that this does not mean that Congress did not have authority to legislate otherwise as there is "nothing in the Constitution which forbids Congress to enact that, as to a class of cases or a case of special character, a circuit court — any circuit court — in which the suit may be brought, shall, by process served anywhere in the United States, have the power to bring before it all the parties necessary to its decision."

For the foregoing reasons, I respectfully concur in the decree.

¹ Counsel for plaintiffs conceded during oral argument of this case that, if Section 3 of the Act be viewed as giving jurisdiction to any district court in the State other than that in which the nuisance exists or the defendants reside, it would be unconstitutional. We, of course, cannot be bound by this acknowledgment of counsel. It is the duty of the court to determine whether laws are violative of the Constitution. They cannot be stricken with nullity by admission of the litigants.

² Compare the case of venue in criminal prosecutions. Section 9 of Article I of the Constitution fixes the venue of all criminal trials by providing "that all trials shall take place in the parish in which the offense was committed, unless the venue be changed; provided further, that the Legislature may provide for the venue and prosecution of offenses committed within one hundred feet of the boundary line of a parish."