This exemption may be claimed by the surviving wife or minor children of the deceased beneficiary, and hence, as remarked in Woods v. Perkins, 43 La. Ann. 347, 9 South. 48, these dependents have an interest in the preservation of the exempt 190 property during the lifetime of the head of the family. In the case at bar the plaintiff is suing, not only in his own interest, but in that of his wife and children. The suggestion that the latter are not claiming anything is disposed of by the consideration that they have at present no standing in court. Plaintiff, although incarcerated, may still use the property for the benefit of his family.

It is urged that some of the articles are not covered by the constitutional exemption of 1898; but they are embraced in other exemption laws: See Code Prac., art. 644; Act No. 79 of 1876. The statement of facts shows that plaintiff was a farmer, and no issue was made below that the corn seized exceeded the quantity necessary for the current year. There was an intervention filed in the suit, asserting privileges on the property seized for rent and supplies, and there was a judgment in favor of interveners. Plaintiff's prayer that we amend this judgment could not be granted, even if this court had jurisdiction of the issues raised by the intervention, because neither the plaintiff nor interveners have appealed, and a judgment as between coappellees cannot be disturbed. Judgment affirmed.

The Right of a Homestead Exemption is not necessarily lost by an absence therefrom which is enforced and not voluntary: Rogers v. Day, 115 Mich. 664, 69 Am. St. Rep. 593; Lyons v. Audry, 106 La. 356, 87 Am. St. Rep. 299. And a homestead right is not lost by the death, marriage, or removal of some members of the family: Lyons v. Audry, 106 La. 356, 87 Am. St. Rep. 299, and cases cited in the cross-reference note thereto; Davis v. Feltman Co., 112 Ky. 293, 99 Am. St. Rep. 289.

As to Who is the Head of a Family within the meaning of home. stead and exemption statutes, see the notes to Wike v. Garner, 70 Am. St. Rep. 107, and Wade v. Jones, 61 Am. Dec. 586.

NEW ORLEANS BASEBALL AND AMUSEMENT COMPANY v. CITY OF NEW ORLEANS.

[118 La. 228, 42 South. 784.]

INJUNCTION-Enforcement of Void Ordinance.-If penal municipal ordinances injuriously affect existing property rights, their legality or constitutionality may be inquired into by a court of equity and their enforcement, in a proper case, enjoined. (p. 370.)

INJUNCTION-Enforcement of Void Ordinance. If property rights will be destroyed, unlawful interference by criminal proceedings under a void municipal ordinance may be reached and controlled by injunction by a court of equity. (p. 372.)

S. L. Gilmore, city attorney, and J. P. Sullivan, assistant city attorney, for the relator.

J. C. Henriques and C. Rosen, for the respondents.

229 LAND, J. On November 27, 1906, the council of the city of New Orleans adopted Ordinance No. 4,211, which reads as follows, to wit:

"Section 1. That it shall be unlawful for any person or persons to establish or operate a baseball park or parks on any of the following streets or avenues of this city, or within a radius of two squares from such streets or avenues, to wit: St. Charles avenue, Esplanade avenue, Carrollton avenue and Canal street.

"Sec. 2. That any person or persons violating the foregoing section of this ordinance shall be subject to a fine of not more than twenty-five dollars ($25.00), or to imprisonment for not more than thirty (30) days, or both, at the discretion of the recorder in whose jurisdiction such violation shall take place, and every day during which such baseball park or parks shall be operated in violation of this ordinance shall constitute a separate violation of the same, and shall be punishable as such."

On November 10, 1906, the New Orleans Baseball & Amusement Company, Limited, a corporation duly chartered for the purpose of establishing, operating, and maintaining a park for the playing of baseball, and to that end to acquire by purchase such property and ground as might be necessary to carry out the objects and purposes set forth in its charter, purchased a certain square of ground in the first district of the city of New Orleans, comprised within and bounded by Carrollton avenue and Banks, Palmyra, and St. James (now

Pierce) streets, for the price of forty thousand dollars, with the intention to erect and operate thereon a baseball park.

On December 10, 1906, said company filed suit in the civil district court of the parish of Orleans, praying for an injunction restraining the mayor and officials of the city 230 of New Orleans from enforcing said ordinance against the petitioner, and from interfering with petitioner in erecting and operating a baseball park on said square of ground.

The petition charged that said ordinance is illegal, null, and void for the reasons, to wit:

1. That the council of the city of New Orleans had and has no power, right, or authority to pass said ordinance, and the same is ultra vires.

2. That said ordinance is oppressive, unreasonable, unjust, and illegal.

3. That said ordinance deprives petitioner of its property without due process of law, in violation of the constitution and laws of this state, and in violation of the constitution of the United States, and especially the fourteenth amendment thereof.

4. That said ordinance denies to petitioner the equal protection of the laws, in violation of the constitution and laws of this state, and in violation of the constitution of the United States, and especially the fourteenth amendment thereof.

5. That said ordinance operates an illegal discrimination against petitioner, by preventing petitioner from owning and operating a baseball park within the limits named, while others are permitted to own and operate baseball parks within said area, and are so operating the same by and with the consent and acquiescence of the said city of New Orleans.

The petition charges that said ordinance was adopted solely for the purpose of prohibiting petitioner from erecting and operating a baseball park on said square of ground, and that petitioner has been notified by the mayor of the city that said ordinance would be enforced against said company. The petition further alleges that the business of operating a baseball park is legitimate, and licensed by the city and state, and, if properly conducted, affords an innocent, harmless, and pleasant amusement to the people, and the enforcement of said ordinance will damage petitioner 231 in many thousand dollars by deprivation of its franchise and property rights in the premises.

The district judge ordered the defendant city to show cause why the preliminary injunction should not be granted as prayed for by the plaintiff.

The city of New Orleans answered: 1. That the court was without jurisdiction ratione materiæ to issue an injunction to restrain the municipal authorities from enforcing a police ordinance, penal in its nature; 2. That plaintiff's petition discloses no cause of action; 3. That the ordinance complained of is legal and valid.

After hearing argument of counsel, the district judge ordered the preliminary writ of injunction to issue as prayed for by the plaintiff. Defendant filed a motion for a new trial, which was denied, and thereupon application was made to the supreme court for a writ of prohibition.

This court ordered the district judge to show cause why the writ of prohibition applied for should not be granted.

The respondent judge, for answer, avers that the civil district court was seised of jurisdiction to issue the injunction and to grant the relief prayed for by plaintiff, and makes part of his answer the record of the cause, including his written opinion assigning reasons for his action, from which we make the following extracts, to wit:

"The substance of the petition is that plaintiff purchased a piece of property and proposed to erect thereon a baseball park, in which to play baseball, and thereafter the city of New Orleans, for the purpose of preventing its operating that baseball park, passed an ordinance prohibiting baseball parks in a certain area. It is alleged in the petition that other baseball parks are operated in the same area, and in the argument of counsel on this application it is admitted or stated that there are from two to three baseball parks in that same area, which had existed there for twenty-five years before the passage of this ordinance.

"This court has jurisdiction to preserve property rights. It makes no difference, where the court undertakes to preserve property rights, 232 that it has to deal, in connection therewith, with criminal ordinances.

"Now, in passing upon this application, the allegations of the petition must be taken as true. The playing of baseball on a park, or keeping a baseball park, is not a nuisance per se. It cannot be declared a nuisance by ordinance, nor can an ordinance be passed to prevent the playing of baseball in a park in a certain area, in a park owned by certain persons,

and permit certain other persons in the same area to play or continue to play the game of baseball in a park owned by them. Such an ordinance is discriminatory and personal, and, if the facts or allegations in the petition are true, it is certainly illegal, null, and void."

The writ of prohibition issues to the judge of the inferior court where the cognizance of the cause does not belong to such court or it is not competent to decide it: Code Prac., art. 846.

In the case at bar the city contends that the civil district court for the parish of Orleans is without jurisdiction to issue an injunction, when it appears that the effect of the injunetion is to prohibit the enforcement of an ordinance in the nature of a police regulation, and that the question of the legality and constitutionality of such an ordinance should be left to the court in, and to the occasion upon, which the attempt is made to enforce it. It is argued that jurisdiction is vested in the recorders' courts in the city of New Orleans for the trial of offenses against city ordinances, subject to an appeal to the criminal district court for the parish of Orleans, and that the civil district court of said parish is without any criminal jurisdiction whatever: Const. 1898, arts. 133, 139, and 141. There can be no doubt as a general proposition that the civil district court has jurisdiction of all ordinary injunction suits against the city of New Orleans; but it is contended that such court is not competent to enjoin the enforcement of a quasi criminal ordinance, and in so doing exceeded its legitimate powers. In State v. Judges, 35 La. Ann. 1075, it was pointed out that a court may have jurisdiction of the subject matter in controversy, and at 233 the same time exceed its legitimate powers in the premises, as when the court enjoined a city council from exercising its delegated power of amotion of one of its officers.

In Boin v. Town of Jennings, 107 La. 410, 31 South. 866, the plaintiff had enjoined the execution of an ordinance prohibiting the selling or giving away of spirituous liquors within the corporate limits of the town. This court held that the inferior court properly declined jurisdiction to maintain the injunction, the effect of which was to prohibit the enforcement of an ordinance in the nature of a police regulation, saying that "the question of the legality or constitutionality of such ordinance, whether to all its provisions, or in part, should be left to the court in which the attempt is made to Am. St. Rep., Vol. 118-24