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Minden and it’s memorable litigation

by Minden Press-Herald

Today’s Echo of Our Past will be about two local cases from the 19th century that reached the Louisiana Supreme Court. I have chosen the two cases for different reasons. The first I picked because it marks the first time a case involving Minden reached our state’s highest court. On the other hand, the second involved two issues that remain controversial today in our area, liquor sales and the separation of church and state. I hope you enjoy these glimpses into Minden’s litigious past.

In 1847, the legal action title, Prothro v. the Minden Seminary was appealed to the Louisiana Supreme Court from the District Court of Claiborne Parish. The plaintiff, John Prothro, was a large landowner in the Minden area. According to the 1840 Census, he owned 50 slaves, making him the third largest slave holder in all of Claiborne Parish, which at that time included most of the modern-day parishes of Bossier, Webster, Bienville, Claiborne and smaller portions of what is now Union and Lincoln parishes. Prothro Branch in Minden today was named after his family. (A point of pride for retired local educator Carlton Prothro.) Andrew Lawson, a Minden attorney, represented Prothro in the case. The lawyer for the Seminary was Tillinghast Vaughn, who in 1850 would be one of the founders of Homer. (In fact Vaughn’s son, Frank, chose the name for that new town that became the parish seat.)

The Minden Seminary had been established in 1838, through the efforts of Minden’s founder, Charles Veeder, who obtained a state charter from the legislature. The question arising in this lawsuit was the obligation of the school to repay a debt owed to Prothro. Edward R. Olcott, the president of the board of trustees of the Minden Seminary, had signed two notes with Prothro in the name of the school. These notes had been secured by a mortgage on two pieces of property owned by the school. When the notes became due, Prothro had attempted to collect the debt. The trustees of the school denied any obligation to pay, claiming that Olcott had pledged the property without authorization. During the trial it was revealed that the official minutes of the board did not indicate the president had been specifically authorized to make the deal in question. However, the secretary of the board testified that such approval was given. He indicated that he remembered the event, and had taken the notes for that meeting on a loose sheet of paper. Before the loose sheet could be transcribed, it had been lost, so the record was never made in the official minute book. Judge Taylor, of the district court, had ruled the secretary’s testimony as inadmissible and found in favor of the seminary. On appeal the Supreme Court, in a ruling written by Justice John Slidell, later to gain fame as a Confederate ambassador during the Civil War, overturned the verdict. The higher court ruled first, that the evidence given by the secretary was admissible and second, that even if it were not, the president had been entrusted by the charter of the seminary with the authority to enter into such transactions, if given such leeway by the board. The court ruled that Olcott was charged with that authority and rendered an order that the seminary pay Prothro $1,755, plus interest compounded since the original due date of January 25, 1841, at the rate of 10% per year. That made the judgment the equivalent of a $60,000 judgment today.

The second case reached the Supreme Court in November 1884. In the Mayor’s Court of Minden, presided over by Mayor William Crawford, two Minden merchants, Silverstein and Dittmer, were found guilty of violating a town ordinance that forbade: “keepers of saloons or houses where wines or spirituous or malt liquors are kept for sale from selling or giving away the same within the corporate limits on the Sabbath, or between the hours of 12 midnight on Saturday night and 12 midnight on Sunday night.” They were fined $15. The two merchants had based their defense on four grounds. First, that the town charter did not allow the control of sales of alcohol; second, that the ordinance conflicted with the First Amendment to the United States Constitution and the Louisiana Constitution; third, that the legislature had no power to prohibit the sales of alcoholic beverages, only to regulate such sales; and fourth, after the trial judge overruled the first three parts, on a general denial that an illegal sale had taken place. The appeal to the Supreme Court, filed by Minden attorney, James F. Taylor, was based on the same four premises. The majority of the court held that the first and third objections on which the appeal was based were not valid on their face, that the right to limit and prohibit alcohol sales was clearly within the scope of the town’s authority and also within the legislature’s power. 

More attention was paid to the second objection, which was rooted in the idea of separation of church and state. Dittmer and Silverstein were Jewish, and as such they claimed that prohibiting the sale of alcohol on the Christian holy day amounted to government endorsement of a specific religion. They went further to add that technically the ordinance could be interpreted to prohibit sales of alcohol on Saturday, since that was actually the Sabbath, the term used in the law. Finally, although the idea of discrimination was somewhat foreign in those days, it was implied that the intent of the law might have included some bias against Jews. (This was not an entirely outlandish premise. Earlier, during the 1850s, the Know-Nothing Party had taken control of the Minden town government after one election and in during its year of power caused many foreign-born merchants, several of them Jewish, to relocate to Shreveport.)

In the majority opinion, Justice Felix Poche dismissed that argument in the following statement: “While it may be that the reason for selecting Sunday as the day on which liquor traffic is prohibited rests on the universally admitted belief in the Christian world that that day is the Sabbath of the Lord, and that it is the day of rest, yet the regulation might well be supported on reasons having no connection with Sunday as a Sabbath, but only as a day on which, under existing habits of the people, large numbers congregate in towns and pass the day in idleness, tending to lead to disorder.” Finding no clear-cut intent, the idea of religious discrimination was rejected.

However, the court ruled in favor of Silverstein and Dittmer on the most basic of grounds, a failure by the town to prove guilt. On the facts of the case the following ruling was handed down: “The evidence shows that the liquor was sold at the defendants’ store on a Sunday by one of their employees, who was not a clerk or a bartender, but merely a porter, whose duty was to do menial work in the store; that the liquor was sold out of the presence of either of the defendants, who had forbidden their employees to sell liquor on Sunday; and that the porter was discharged for the reason of having sold the very glass of liquor which has given rise to this controversy. As the porter acted in the premises beyond the functions of his employment and without the knowledge of consent of the defendants, and as the evidence does not show they ratified or approved of his act, but it appears on the contrary that they discharged him on that account, we cannot agree with the mayor in holding them as transgressors of the ordinance under the circumstances as shown by the record. In our opinion, the case is with them on the facts, and for those reasons, we must reverse the judgment of the mayor. The judgment appealed from is therefore reversed and set aside, and the demand of plaintiff is rejected at its costs in both courts.”

The ruling served as a landmark in drawing the line between an employee acting as a legitimate agent of his employer and one acting outside that capacity for many years thereafter, based on the number of times it was cited in other appeals. However, another opinion was issued in the case. Two justices of the court sided with the majority, yet were moved enough by the allegation of government-sanctioned religion to put forth a concurring opinion. Written by Justice Thomas C. Manning, later to be U.S. Ambassador to Mexico, and also signed by Justice Edward Bermudez, their opinion pointed out the perilous line that exists between church and state in our country. I will end today’s Echo with the text of that opinion, a remarkable document for 1884 that foreshadows many of the very arguments we hear waged today in our country. Here is the ruling:

“I rest my concurrence on the grounds set forth in State v. Bott,  that the town-ordinance is a police regulation that the municipal authorities can make for the preservation of public order on a day when its inhabitants are idle from not pursuing their usual vocations, as they might have made Saturday the day of cessation of liquor-selling because on that day country towns are usually flooded by a class that are apt to become disorderly. The same prohibition is often made for election-day and is justified for the same reason, viz that it is a police regulation in the interest of the public peace.

”Still, there is force in the argument that the obvious reason why Sunday was selected as the day of prohibition is because the votaries of a particular religion attach a special sanctity to that day, and as that is the controlling motive of the selection, the prohibition is a regulation for the compulsory observance of a particular religion. Christians would have no difficulty or hesitancy in detecting the motive if the town authorities were Jews, and they had forbade the sale of liquor on Saturday and allowed it on Sunday.

“To my mind there is no entirely satisfactory answer to that argument. It is always difficult and often impossible to explain or discover the distinction between a regulation made solely in virtue of the police power and for the preservation of public order alone, and one made for the observance of a particular day set apart by the followers of a particular religion for special religious purposes. Each case must therefore rest on its own facts and circumstances, and these must clearly bring it within the scope of a police regulation or it ought not to be maintained. An oft-quoted writer on Constitutional law well says; ‘The laws against the desecration of the Christian Sabbath by labour and sports are not readily defensible by arguments the force of which all would admit. The Jew who is forced to respect the first day of the week, when his conscience requires of him the observance of the seventh, may plausibly urge that the law discriminates against his religion, and by compelling him to keep a second Sabbath in each week unjustly though indirectly punishes him for his religious belief.’

”Whenever the common-law courts sustain regulations such as this on the ground that Christianity is in a sense however qualified a part of the common-law, they can have no weight with us. The common-law never prevailed here and the Civil law countenances no such pretension. Even in England where that doctrine originated the Lord Chief Justice lately emphatically said;  ‘it is no longer possible to affirm that Christianity is a part of the law of the land. There was a time when that was so in a sense in which it has now ceased to be, a time when heretics and misbelievers were punishable for their opinions, and when the most orthodox species of non-conformity excluded a man from public office.’ This overrules with one fell swoop the English decisions of a century and discredits the American decisions that followed them.

”This is not a matter of sentiment or of feeling. They who laid the foundations of our government knew well the immense and overshadowing importance of guarding against that particular danger, for no provision of our civil polity requires to be more jealously guarded than that American Magna Charta which forever dissociates religion from the State, and erects an insuperable barrier to the punishment of any man for his religion or for the want of it.”

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