City of Shreveport v. Leiderkrantz Society

• Decision Date: 22 April 1912
• Docket Number: 19,332,19,342
• Citation: 58 So. 578,130 La. 802
• Court: Louisiana Supreme Court
• Parties: CITY OF SHREVEPORT v. LEIDERKRANTZ SOCIETY

58 So. 578

130 La. 802

CITY OF SHREVEPORT v. LEIDERKRANTZ SOCIETY

Nos. 19,332, 19,342

Supreme Court of Louisiana

April 22, 1912

Rehearing Denied May 20, 1912.

Appeal from First Judicial District Court, Parish of Caddo; E. W Sutherlin, Judge.

Action by the City of Shreveport against the Leiderkrantz Society. Certain citizens intervened. From the judgment, the city and the interveners appeal. Reversed, and suit ordered dismissed.

G. W Jack, City Atty., for appellant City of Shreveport.

J. S Atkinson, for appellants interveners.

B. H. Lichtenstein, Cal D. Hicks, and J. F. Fisher, for appellee.

OPINION

SOMMERVILLE, J.

The Leiderkrantz Society is a German social organization, originally formed for the purpose of having a singing circle, as is suggested by the name. It bought property in the suburbs of Shreveport, where it might have a park, and whereon might be erected a hall, etc., for its purposes. Five years ago it added a bowling alley as one of its adjuncts. The council of Shreveport, declaring that much complaint had been made by citizens residing in the neighborhood of the Leiderkrantz hall of noise and disturbance emanating from the bowling alley, recently caused defendant, through its proper officers, to be notified to appear before it, the council, and to show cause why such bowling alley should not be suppressed as a nuisance. After hearing, the council, by resolution, declared that the bowling alley appeared to constitute a public nuisance, and ordered the same suppressed. It caused notice to be sent to the society, and on failure to abate the nuisance the city attorney was instructed to take such legal action as might be proper or necessary to suppress it. Whereupon this suit was filed. In its petition, the city alleges that the said bowling alley and clubhouse are located in a residential district; that the noise emanating from said bowling alley greatly interferes with the peace and comfort of the citizens living in that neighborhood; that the alley was conducted in a rough and boisterous manner, and in such a way as to render it a public nuisance; that the city council, in due order, declared by resolution such bowling alley to be a public nuisance and ordered same abated; and that the continued operation of said bowling alley will cause petitioner and citizens residing in the neighborhood great and irreparable injury. It then asked that a writ of injunction issue enjoining and restraining the said Leiderkrantz Society from operating said bowling alley. After trial, there was judgment as follows, in part:

"It is therefore ordered, adjudged, and decreed that the demands of plaintiff, city of Shreveport, for a perpetual injunction entirely restraining and enjoining the defendant, Leiderkrantz Society, from operating its bowling alley as claimed by plaintiff under a resolution of the city council of the city of Shreveport, of date October 27, 1911, declaring said bowling alley a public nuisance, and ordering same to be suppressed, annexed to plaintiff's petition, be and the same are hereby rejected and denied."

The record shows that two citizens, residing in the neighborhood of the defendant, intervened and filed a petition joining the plaintiff, adding a few allegations, and joining in the prayer of the plaintiff herein. The petition of the interveners is not disposed of in the judgment of the court. They (interveners) have nevertheless appealed devolutively from the judgment.

The portion of the judgment given above was in favor of the defendant society. The petition of plaintiff was rejected and denied. In contradiction of what had gone before, the court proceeded to decree as follows:

"It is further ordered, adjudged, and decreed that the noise from the operation by defendant's bowling alley complained of by plaintiff and interveners be abated, limited, reduced, confined, and minimized within the periods and limits of time and under the conditions and requirements as follows, to wit."

The court then proceeds to fix hours within which defendant might operate its bowling alley, and to further provide for the remodeling of the building, and to direct certain changes and appliances to be made in the alley. This was not responsive to the prayer of plaintiff's petition, or to anything in defendant's answer. The order of the court is in the nature of an ordinance by a city council. It is a piece of legislation, and the court is without power to make such an order. It has no means of compelling a compliance therewith. That part of the judgment will be reversed and set aside. Both plaintiff and defendant, as well as the interveners, complain of the judgment. The city and the interveners have appealed, and the defendant has filed an answer to that appeal, asking that the judgment appealed from be set aside in its entirety, and the suit dismissed.

The city attorney says in his printed argument in this court:

"Either the city did or did not have the authority to order the suppression of the bowling alley. If it did not, the lower court should have dismissed the suit. If it did, and the action was not arbitrary, the court should have granted the injunction as prayed for."

The city has the right, under its police power, to suppress nuisances. It had the right to declare the bowling alley in question to be a nuisance, if, after investigation, it found it to be one. But this finding is subject to review by the courts of justice. A bowling alley is not a nuisance per se. Such an alley may become a nuisance, and it would be the duty of the court to sustain the action of the council if, after trial, the evidence proved that the council acted properly, and not arbitrarily. The city attorney asks the court to decide whether, in this instance, the common council acted in an arbitrary manner or not. The court will be slow to find that the council acted in an arbitrary manner, and set aside any act which it is authorized by its charter to perform.

We have not the evidence before us which was presented to the common council before it took action and declared the bowling alley to be a nuisance. The council has not adopted a general ordinance declaring all bowling alleys to be nuisances. It has not defined limits within which public bowling alleys may be established. So far as the record shows, there is no evidence directing how bowling alleys might be operated. We have nothing to guide us in these matters....