Durrett Hardware & Furniture Co. v. City of Monroe

• Citation: 5 So.2d 911,199 La. 329
• Decision Date: 05 January 1942
• Docket Number: 36236.
• Court: Louisiana Supreme Court
• Parties: DURRETT HARDWARE & FURNITURE CO., Inc., et al. v. CITY OF MONROE, et al. (MASUR et al., Intervenors).

5 So.2d 911

199 La. 329

DURRETT HARDWARE & FURNITURE CO., Inc., et al. v. CITY OF MONROE, et al. (MASUR et al., Intervenors).

No. 36236.

Supreme Court of Louisiana

January 5, 1942

S. L. Digby, of Monroe, for appellant City of Monroe.

McHenry Lamkin & Titche, Theus, Grisham, Davis & Leigh, and Thompson & Thompason, all of Monroe, for appellees.

Hudson Potts, Bernstein & Snellings, of Monroe, for intervenors Sigmund Masur et al.

McCALEB, Justice.

Sigmund Masur and his family are the owners and operators of a large department store, known as 'The Palace', located in the business district of the City of Monroe. This store fronts on DeSiard Street and runs completely through the block so that its rear abuts on Harrison Street. Masur and family are also the owners of a plot of ground fronting on Harrison Street directly across the street from the rear of the Palace department store.

On January 14, 1941, the Masur family entered into a written contract with one C. E. Andrews for the erection of a two-story building upon the plot of ground fronting on Harrison Street it being their intention to use the building to be constructed as a warehouse and storeroom in connection with the business operated by them across the street at the Palace. This contract also provided for the erection of an overhead passageway or viaduct across Harrison Street connecting the rear of the department store with the new structure which would make both buildings more readily accessible to the employees of the Masurs and would thereby obviate their use of the surface of the street in transporting goods or merchandise from one building to the other.

Shortly after this contract had been let, the Masur family applied to the City Council of Monroe for a permit to erect the overpass or viaduct over Harrison Street. Thereafter, Mr. H. H. Benoit Mayor of the City, submitted an ordinance to the Council by which it was proposed that permission be given to the Masurs to construct a viaduct across and over Harrison Street having a minimum clearance above the street of not less than fifteen feet, a width of not over six feet and a height of not more than seven feet six inches. It was further provided that the overpass should have no footing, foundation, supporting piers or any form of support in or upon Harrison Street; that the privilege to be accorded to the Masurs would be for a term of twenty-five years for the consideration of $1,250, payable in twenty-five equal annual installments of $50 each in advance; that the grantees would not be permitted to exercise the privilege or license except for their own business; that the City would retain full power to revoke or repeal the grant at any time it saw fit and that the construction and continued maintenance of the viaduct should remain subject at all times to the police powers of the municipal government.

The purpose for the proposed grant to the Masur family is contained in the preamble of the ordinance. It is therein stated that it is the sense and finding of the City Council of Monroe that the viaduct or overpass will in no way impede or interfere with the free passage of traffic upon Harrison Street and the free use of said street by the public, but that, as a matter of fact, it will materially reduce and lessen the hazard to public safety which will otherwise arise from the considerable cross traffic between the buildings of the Masurs on the street surface, and that the Council believes that the public convenience and safety will be materially served and benefitted by the proposed construction.

Upon the proposal of this ordinance, the plaintiffs, Durrett Hardware & Furniture Co., Inc., Millsaps Realty Co., Inc., Hotel Frances, Inc., Central Savings Bank & Trust Company, John S. Hunt, Carl H. McHenry and Otis E. Hodge, residents and taxpayers of the City of Monroe who either own or have mortgages upon property situated within the vicinity of Harrison Street, protested to the City Council of Monroe against the adoption of the ordinance claiming that the overpass, if erected, would cause material damage to their property and that the Council was without power to permit the Masur family to make use of a part of Harrison Street for their private business.

Mr. Benoit, the Mayor of the City, in reply to these protestations, stated that the proposed ordinance was on file; that the members of the Council had committed themselves to its passage prior to the time that any objection had been brought to their attention and that it would be adopted in due course.

Upon the receipt of this communication from the Mayor, the plaintiffs instituted the present suit against the City of Monroe and the members of the City Council for an injunction restraining and prohibiting the City Council from passing the proposed ordinance granting to the Masurs the right to construct the overhead passageway above described. The sole ground advanced by the plaintiffs for the relief sought is that the City of Monroe, under the powers delegated to it by the Legislature in its Charter (Act No. 47 of 1900, as amended), has no right or authority to permit any person to use the public streets of the city for a private purpose and they claim that the adoption of the proposed ordinance will cause them immediate and irreparable injury.

In compliance with the prayer of the petition, a rule was issued by the District Judge for the defendants to show cause why the relief prayed for by the plaintiffs should not be granted. On the return day of this rule, the defendants appeared and filed (1) an exception of prematirity, (2) an exception of no right or cause of action, and (3) an answer in which they averred that the City was vested with full power and authority to adopt the proposed ordinance. The Masur family intervened in the proceeding setting forth that the City had the right to grant them permission to erect an overpass on Harrison Street; that the overpass would in no way interfere with the plaintiffs' full use and enjoyment of that street; that the proprietors of real estate situated on Harrison Street within the immediate vicinity of the proposed location of the overpass had consented to its erection and that the use to which the overpass would be put would relieve, rather than obstruct, traffic in and upon Harrison Street.

After a consideration of the arguments made on the exceptions filed by the defendants, the District Judge overruled them and expressed the opinion that the City of Monroe was without power or authority to enact the ordinance which he found was designed for the purpose of permitting the Masurs to use the public street for their private purpose. Being of the view that the passage of such an ordinance would constitute an ultra vires act of the City Council, the judge decided that it would not be necessary to hear evidence in the case. He, accordingly, issued the preliminary injunction prayed for by the plaintiffs and dismissed the intervention of the Masur family. The defendants and the intervenors have prosecuted this appeal from the adverse decision.

The first question presented for determination is whether the District Judge erred in refusing to sustain the defendants' exception of prematurity. This plea is based upon the theory that, since the City Council of Monroe has not as yet adopted the ordinance (although it is alleged that its members have committed themselves in favor of its passage), a court of equity cannot properly interfere with or, in advance, restrain the discretion of a municipal body while it is in the exercise of powers that are legislative in their character.

The plaintiffs, while recognizing that, as a general rule, equity will not interfere with a municipal body merely because it threatens to pass an ordinance which is claimed to be invalid, proclaim that this doctrine is subject to...