State Ex Rel. Singelmann v. Morrison

57 So. 2d 238, 1952 La. App. LEXIS 488
CourtLouisiana Court of Appeal
DecidedMarch 3, 1952
Docket19791
StatusPublished
Cited by29 cases

This text of 57 So. 2d 238 (State Ex Rel. Singelmann v. Morrison) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Singelmann v. Morrison, 57 So. 2d 238, 1952 La. App. LEXIS 488 (La. Ct. App. 1952).

Opinion

57 So.2d 238 (1952)

STATE ex rel. SINGELMANN
v.
MORRISON, Mayor, et al.

No. 19791.

Court of Appeal of Louisiana, Orleans.

March 3, 1952.
Rehearing Denied March 17, 1952.
Writ of Certiorari Denied April 28, 1952.

*240 R. A. Dowling, New Orleans, for George Singelmann, plaintiff and appellant.

Anna Andollina, New Orleans, for intervenors and appellants.

Henry B. Curtis, City Atty., and Charles E. Cabibi, Asst. City Atty., New Orleans, for defendants and appellees.

McBRIDE, Judge.

The relator and the intervenors have appealed from the judgment of the court below denying their prayer for a mandamus or mandatory injunction.

The learned trial judge handed down written reasons for judgment, which we commend, and we adopt that part of them quoted below as the opinion of this court:

"A mandamus or mandatory injunction is sought against the Mayor and Commissioner of Public Property of the City of New Orleans, to compel the removal of a statue or memorial erected on public property to St. Frances Xavier, Mother Cabrini.

"Plaintiff is a lay member of a Protestant religious sect. The Intervenors who joined him are ministers of various Protestant religious sects. Plaintiff and Intervenors appear in their individual capacity as citizens and taxpayers, not as the representative of any organized congregations or religious sects.

"Petitioner and Intervenors complain that the Mayor and Commissioner of Public Property are not performing their duty because they permit the challenged statue to remain on public property in violation of state and federal constitutional prohibitions. The gravamen of the complaint is that the statue portrays Mother Cabrini, or Frances Xavier Cabrini, as a nun of a religious order of the Roman Catholic Church, and that the inscription on the monument is as follows:

"`St. Frances Xavier Mother Cabrini Erected August 25, 1949 By The Order Of The Alhambra During Its 23rd Biennial Convention.'

"The Order of Alhambra is a social affiliate of the Knights of Columbus, a Catholic fraternal society. Membership in the Order of Alhambra is restricted exclusively to members of the Knights of Columbus.

"Defendants admit the statue is erected on the neutral ground of Harrison Avenue, at the intersection of Canal Boulevard, two wide and well-paved boulevards in a fine residential section of New Orleans.

"The Complainants urge that the erection of this statue violates Article 1 (Section 4) and Article 4 (Section 12) of the Louisiana Constitution of 1921, and the First Amendment to the Constitution of the United States. The First Amendment to the Constitution of the United States prohibits Congress to make a law respecting the establishment of religion. At the outset, I must hold that the provision of the federal constitution is not properly invoked and there is no federal question involved, since the erection of the statue here complained of cannot be held to be the establishment of a religion either by Congress or the Legislature.

"Article 1, Section 4, of the Bill of Rights of the Louisiana Constitution of 1921 provides: `Every person has the natural right to worship God according to the dictates of his own conscience. No law shall be passed respecting an establishment of religion, nor prohibiting the free exercise thereof; nor shall any preference ever be given to, nor any discrimination made against, any church, sect or creed of religion, *241 or any form of religious faith or worship.'

"The provision of Article 4, Section 12, of the Louisiana Constitution of 1921 invoked by plaintiff provides, inter alia: `The funds, credit, property or things of value of the State, or of any political corporation thereof, shall not be loaned, pledged or granted to or for any person or persons, association or corporation, public or private; * * *.'

"There is no charge that the erection of this monument is ultra vires the powers of the City of New Orleans. Under Section 8, Paragraph 4, Act 159 of 1912 (The City Charter), the Commission Council is given the power `To improve and embellish the public squares and parks and places.'

"The doctrine is now generally recognized that the reasonable use of public money for memorial buildings, monuments and other public ornaments, designed to inspire sentiments of patriotism or of respect for memory of worthy individuals is for a public purpose. Barrow v. Bradley, 190 Ky. 480; 227 S.W. 1016; In re Opinion of the Justices, 190 Mass. 611; 77 N.E. 820; and 30 A.L.R. 1036.

"That monuments and statues may rightly be erected by municipalities in the public streets, avenues, places, squares and parks, has repeatedly been held. Statues of men and women in commemoration of great public events are now considered as the legitimate belongings of public places. Cities throughout this country give abundant proof that statues, ornamental temples, obelisks, pillars and columns, have long been considered objects of approval and admiration. Parsons v. Van Wyck, 56 App. Div. 329, 67 N.Y.S. 1054 and 18 A.L.R. 1259.

"From time out of mind grateful communities have at public expense and with public approval, paid fitting tribute to its deserving dead, who in peace or war, had served their community, state or nation. In discussing the historical facts that follow, the Court first observes that it can take judicial notice of all historical events, current and otherwise, that everybody knows or should know.

"Only recently one of the first military funerals ever recorded in Louisiana was held in New Orleans for Sister Regina Purtell, 84 year old Sister of Charity, at whose Requiem Mass and burial stood a Guard of Honor composed of a medical detachment and firing squad from Camp Leroy Johnson, and nurses from local military and civilian hospitals. Could it be said that the use of this medical detachment was the illegal use of a public body for private purposes since Sister Purtell was honored, not because she was a member of an order of the Roman Catholic Church, but honored because of her sacrifices, and for her great work among the poor and afflicted?

"The City of New Orleans is studded with monuments and memorials to its celebrated dead. In front of the very courthouse where the Court sits is the bronze statue of Louisiana's only Chief Justice of the United States, Edward Douglas White, who appears in his judicial robe.

"In Margaret Square is the statue of Margaret Haughery. The statue shows her sitting in a chair, as she did in front of her bakery where she served the sick, the poor and the orphan. The statue depicts her dressed in frugal clothes, with her arm around the shoulder of a little child, who looks appealingly and gratefully into her eyes. The lone word on the statue `Margaret' in its simple eloquence recalls to all the story of her sacrifices and deeds of charity.

"We find in Lafayette Square, opposite City Hall, a pedestal to John McDonough, a Protestant, who founded the public school system of New Orleans. Each year the school children of New Orleans make a pilgrimage to the monument for the purpose of paying tribute and homage to his memory because of his generosity.

"General Beauregard sits astride his horse in life-like figure guarding the Esplanade Avenue entrance to City Park, in memory of his military exploits as a general of the Confederate Army. Then there is the towering shaft to General Robert E. Lee at Lee Circle, and Andrew Jackson astride his charger in historic Jackson *242 Square, both honored for their military exploits.

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Bluebook (online)
57 So. 2d 238, 1952 La. App. LEXIS 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-singelmann-v-morrison-lactapp-1952.