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U.S. Supreme Court

Permoli v. Municipality No. 1 of the City of New Orleans, 44 U.S. 3 How. 589 589 (1845)

Permoli v. Municipality No. 1 of the City of New Orleans

44 U.S. (3 How.) 589



This Court has not jurisdiction, under the 25th section of the Judiciary Act, of a question whether an ordinance of the corporate authorities of New Orleans does or does not impair religious liberty.

The Constitution of the United States makes no provision for protecting the citizens of the respective states in their religious liberties; this is left to the state constitutions and laws.

The Act of February 20, 1811, authorizing the people of the Territory of Orleans to form a constitution and state government, contained, in the third section thereof, two provisos, one in the nature of instructions how the constitution was to be formed and the other reserving to the United States the property in the public lands, their exemption from state taxation, and the common right to navigate the Mississippi.

The first of these provisos was fully satisfied by the act of 1812, admitting Louisiana into the union "on an equal footing with the original states." The conditions and terms referred to in the act of admission referred solely to the second proviso, involving rights of property and navigation.

The act of 1805, chap. 83, extending to the inhabitants of the Orleans Territory the rights, privileges and advantages secured to the Northwestern Territory by the ordinance of 1787, had no further force after the adoption of the state Constitution of Louisiana, than other acts of Congress organizing the territorial government and standing in connection with the ordinance. They are none of them in force unless they were adopted by the state constitution.

In 1842, the defendants in error passed the following ordinance:

Page 44 U. S. 590

"Municipality No. 1 of the City of New Orleans."

"Sitting of Monday, October, 31, 1842. -- Resolved that from and after the promulgation of the present ordinance, it shall be unlawful to carry to and expose in any of the Catholic churches of this municipality any corpse, under the penalty of a fine of fifty dollars, to be recovered for the use of this municipality against any person who may have carried into or exposed in any of the aforesaid churches any corpse, and under penalty of a similar fine of fifty dollars against any priest who may celebrate any funeral at any of the aforesaid churches, and that all the corpses shall be brought to the obituary chapel, situated in Rampart Street, wherein all funeral rites shall be performed as heretofore."

"[Signed] PAUL BERTUS, Recorder"

"Approved November 3"

"[Signed] D. PRIEUR, Mayor"

And a few days afterwards, the following:

"Sitting of November 7, 1842. -- Resolved that the resolution passed on 31 October last concerning the exposition of corpses in the Catholic churches be so amended as to annul in said resolution the fine imposed against all persons who should transport and expose or cause to be transported or exposed any corpses in said churches."

"Be it further resolved that the said fine shall be imposed on any priest who shall officiate at any funerals made in any other church than the obituary chapel."

"[Signed] PAUL BERTUS, Recorder"

"Approved November 3"

"[Signed] D. PRIEUR, Mayor"

On 11 November, 1842, the municipality issued the following warrant against Permoli, a Catholic priest:

"Municipality No. 1"


"Bernard Permoli"

"Plaintiff demands of defendant fifty dollars fine for having, on 9 November, 1842, officiated on the body of Mr. Louis LeRoy in the Church St. Augustin in contravention of an ordinance passed on 31 October last."

To which the following answer was filed:

"The answer of the Reverend B. Permoli, residing at New Orleans, to the complaint of Municipality No. 1;"

"This respondent for answer says true it is that the corpse of Mr. Louis Le Roy deceased, was brought (enclosed in a coffin) in the Roman Catholic Church of St. Augustin, and there exposed, and that when there thus exposed, this respondent, as stated in the complaint, officiated on it by blessing it, by reciting on it all the other funeral prayers and solemnity, all the usual funeral ceremonies

Page 44 U. S. 591

prescribed by the rites of the Roman Catholic religion, of which this respondent is a priest. That in this act he was assisted by two other priests and by the chanters or singers of the said church."

"This respondent avers that in so doing he was warranted by the Constitution and laws of the United States, which prevent the enactment of any law prohibiting the free exercise of any religion. He contends that the ordinance on which the complainants rely is null and void, being contrary to the provisions of the act of incorporation of the City of New Orleans and to those of the Constitution and laws of the United States, as above recited."

"This respondent therefore prays to be hence dismissed with costs."

"[Signed] D. SEGHERS, of counsel"

The judge before whom the case was tried decided that the ordinance was illegal and not supported by any of the acts of the legislature incorporating the City of New Orleans. But the case being carried up by appeal to the city court, the decision was reversed and judgment entered in favor of Municipality No. 1 against Permoli for fifty dollars and costs.

The judge of the city court, before deciding the case, made the following remarks which it may not be inappropriate to transcribe.

"Before entering into statement of the case as it appeared on the trial before this Court, I consider it necessary to give a mere outline of the circumstances which induced the Council of the First Municipality to pass the ordinances of 31 October and 7 November, 1842."

"By an ordinance of the corporation of the City of New Orleans approved 26 September, 1827, and entitled 'An ordinance supplementary to an ordinance concerning public health,' it was"

" Resolved that from and after the first of November next (1827), it shall not be lawful to convey and expose into the parochial church of St. Louis any dead person, under penalty of a fine of fifty dollars, to be recovered for the use of the corporation against any person who should have conveyed or exposed any dead person into the aforesaid church, and also under penalty of a similar fine of fifty dollars against all priests who should minister to the celebration of any funeral in said church, and that from the first of November of the present year (1827), all dead persons shall be conveyed into the obituary chapel in Rampart Street, where the funeral rites may be performed in the usual manner."

"This ordinance continued in force during a period of fifteen years without any opposition on the part of the Catholic Clergy or population, but in the year 1842 the late lamented and venerable revered Abbe Moni, curate of the Parish of St. Louis, having departed this life, some misunderstanding took place between his successor and the church wardens. The new curate and assistant clergy abandoned the cathedral and commenced to celebrate funeral ceremonies in other churches than the obituary chapel, this chapel being

Page 44 U. S. 592

under the administration of the said wardens. The council thereupon passed the ordinances for the violation of which the defendant is sued."

"The case was presented here on the same pleadings as in the court below, but the plaintiff's counsel introduced evidence to prove several facts; this "

"The Right Reverend A. Blanc, Bishop of New Orleans, testified that the dogmas of the Roman Catholic religion did not require that the dead should be brought to a church in order that the funeral ceremonies should be performed over them; that this was a matter of discipline only; that the witness, as bishop of this diocese, had authorized the clergy to leave the cathedral, and not to officiate at funeral rites at the obituary chapel, and that these ceremonies might be celebrated at the house where the dead person expired or at any other place designated by the bishop."

"The Reverend C. Maenhant, curate of the Parish of St. Louis, testified that he was the curate of said parish, and in that capacity he had given orders for no funeral service to be said at the obituary chapel; that from the situation of the clergy with regard to the wardens, these funeral services could not with propriety be performed at said chapel; that he had been several times applied to by persons who wished these ceremonies celebrated over the dead bodies of their friends or relatives at the obituary chapel, but he had replied that under present circumstances, these ceremonies would not be performed at that place, but at the chapel of St. Augustin or in the house where the deceased person was lying, at the choice of the relatives."

"Cross-examined -- This witness testified that the St. Augustin chapel was, in his opinion, as conveniently situated for these purposes as the obituary chapel; that in the funeral office there is nothing calculated to disturb the public peace, nothing contrary to morals, and that the greatest decency is always observed in these mortuary rites."

"The Reverend Jacques Lesne testified that he is the priest employed as chaplain at the obituary chapel; that he is entitled to no remuneration besides what he receives from the church wardens for attending at the chapel to bless the bodies of the dead which are brought there; that he does not celebrate funeral obsequies with that pomp which is given to them in special cases, but he continues, with the permission of the bishop, to read the office of the dead, whenever required, at the obituary chapel, as he did previous to the departure of the clergy from the cathedral; that he is not permitted to leave the chapel to accompany funerals to the cemetery."

"Cross-examined. -- He said there is nothing immoral or contrary to the public tranquility in the prayers which are said at funerals."

"Messrs. Jose Fernandez, Bernard Turpin, Anthony Fernandez, and Joseph Genois proved that for fifteen years past, the funeral

Page 44 U. S. 593

service has been performed at the obituary chapel, only that this chapel is the best situated for this purpose and that nothing disorderly ever occurred there."

"Mr. A. Fernandez, cross-examined, added that he had never known of the occurrence of any disturbance of the public peace during the ceremonies as the St. Augustin chapel, but he had heard a great deal of complaint about it, and that, being a native of New Orleans and having almost constantly resided here, he has never seen or heard of the performance of funeral rites at any of the Protestant churches."

"The Honorable Paul Bertus, Recorder of Municipality No. 1, proved that having had the misfortune to lose his sister-in-law, he desired that the funeral solemnities should have been celebrated at the obituary chapel, but that the clergy had left him no choice but between the St. Augustin chapel and the mortuary house, and that he determined upon the latter place."

"The following resolutions, passed by the church wardens of the Parish of St. Louis, were next introduced: "

"Sitting of Friday, 11 November, 1842. -- Resolved that the obituary chapel shall be open for the reception of the remains of all deceased Catholics."

"Resolved that all persons who desire to have dead bodies exposed in funeral state at the said chapel are requested to give notice to the secretary of the wardens in order that he may cause the necessary preparations to be made."

"Resolved that the public be informed that the Reverend Abbe Lesne shall continue to bless all bodies of dead persons brought to the obituary chapel, and that he will continue to say the usual funeral prayers at said chapel."

"A correspondence between the mayor and the curate was also introduced by consent of parties, but the court, considering this evidence as having no legal effect upon the case, contents itself merely with the mention of its introduction."

"Henry St. Paul, Esq., one of defendant's counsel, testified that at Lexington, Kentucky, he saw the body of a deceased person taken into the Methodist Episcopal church, where a funeral oration was pronounced for the occasion by the Reverend Maffit, a minister of that persuasion, and that said oration was followed by prayers."

"Finally, the testimony of Mr. P. E. Crozat proved that, one of his friends having departed this life, and having been warned by Mr. Rufino Fernandez of the existence of the ordinance, he had nevertheless insisted that the body should be taken to the St. Augustin chapel for the funeral rites, holding himself responsible for the fine imposed, for his opinion was on the side of the clergy."

The judge of the city court then gave his opinion at large and decided, as has already been stated, in favor of Municipality No. 1, from which decision a writ of error brought the case up to this Court.

Page 44 U. S. 609

MR. JUSTICE CATRON delivered the opinion of the Court.

As this case comes here on a writ of error to bring up the proceedings of a state court, before proceeding to examine the merits of the controversy, it is our duty to determine whether this Court has jurisdiction of the matter.

The ordinances complained of must violate the Constitution or laws of the United States or some authority exercised under them; if they do not, we have no power by the 25th section of the Judiciary Act to interfere. The Constitution makes no provision for protecting the citizens of the respective states in their religious liberties; this is left to the state constitutions and laws. Nor is there any inhibition imposed by the Constitution of the United States in this respect on the states. We must therefore look beyond the Constitution for the laws that are supposed to be violated and on which our jurisdiction can be founded. These are the following acts of Congress. That of February 20, 1811, authorized the people of the Territory of Orleans to form a Constitution and state government; by sec. 3, certain restrictions were imposed in the form of instructions to the convention that might frame the Constitution, such as that it should be republican, consistent with the Constitution of the United States, that it should contain the fundamental principles of civil and religious liberty, that it should secure the right of trial by jury in criminal cases, and the writ of habeas corpus, that the laws of the state should be published, and legislative and judicial proceedings be written and recorded in the language of the Constitution of the United States. Then follows by a second proviso, a stipulation reserving to the United States the property in the public lands, and their exemption from state taxation, with a declaration that the navigation of the Mississippi and its waters shall be common highways, &c.

By the Act of April 8, 1812, Louisiana was admitted according to the mode prescribed by the act of 1811; Congress declared it should be on the conditions and terms contained in the 3d section of that act, which should be considered, deemed and taken as fundamental conditions and terms upon which the state was incorporated in the union.

All Congress intended was to declare in advance to the people of the territory the fundamental principles their Constitution should contain; this was every way proper under the circumstances. The instrument having been duly formed and presented, it was for the national legislature to judge whether it contained the proper principles, and to accept it if it did or reject it if it did not. Having accepted the Constitution and admitted the state "on an equal footing with the original states in all respects whatever" in express terms by the act of 1812, Congress was concluded from assuming

Page 44 U. S. 610

that the instructions contained in the act of 1811 had not been complied with. No fundamental principles could be added by way of amendment, as this would have been making part of the state constitution; if Congress could make it in part, it might, in the form of amendment, make it entire. The conditions and terms referred to in the act of 1812 could only relate to the stipulations contained in the second proviso of the act of 1811, involving rights of property and navigation, and in our opinion were not otherwise intended.

The principal stress of the argument for the plaintiff in error proceeded on the ordinance of 1787. The act of 1805, chap. 83, having provided that from and after the establishment of the government of the Orleans Territory, the inhabitants of the same should be entitled to enjoy all the rights, privileges, and advantages secured by said ordinance, and then enjoyed by the people of the Mississippi Territory. It was also made the frame of government, with modifications.

In the ordinance, there are terms of compact declared to be thereby established, between the original states and the people in the states afterwards to be formed northwest of the Ohio, unalterable, unless by common consent -- one of which stipulations is that

"No person demeaning himself in a peaceable manner shall ever be molested on account of his mode of worship, or religious sentiments in the said territory."

For this provision is claimed the sanction of an unalterable law of Congress, and it is insisted the city ordinances above have violated it, and what the force of the ordinance is north of the Ohio we do not pretend to say, as it is unnecessary for the purposes of this case. But as regards the State of Louisiana, it had no further force, after the adoption of the state constitution, than other acts of Congress organizing, in part, the territorial government of Orleans and standing in connection with the ordinance of 1787. So far as they conferred political rights and secured civil and religious liberties (which are political rights), the laws of Congress were all superseded by the state constitution; nor is any part of them in force unless they were adopted by the Constitution of Louisiana as laws of the state. It is not possible to maintain that the United States hold in trust, by force of the ordinance, for the people of Louisiana, all the great elemental principles, or any one of them, contained in the ordinance, and secured to the people of the Orleans Territory during its existence. It follows no repugnance could arise between the ordinance of 1787 and an act of the Legislature of Louisiana or a city regulation founded on such act, and therefore this Court has no jurisdiction on the last ground assumed, more than on the preceding ones. In our judgment, the question presented by the record is exclusively of state cognizance, and equally so in the old states and the new ones, and that the writ of error must be


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