Calvo v. City of New Orleans

• Decision Date: 25 January 1915
• Docket Number: 20471
• Citation: 67 So. 338,136 La. 480
• Court: Louisiana Supreme Court
• Parties: CALVO v. CITY OF NEW ORLEANS

67 So. 338

136 La. 480

CALVO v. CITY OF NEW ORLEANS

No. 20471

Supreme Court of Louisiana

January 25, 1915

SYLLABUS

(Syllabus by the Court.)

A city ordinance, which makes it unlawful to establish or operate any sort of business whatsoever on a named public street of New Orleans, is ultra vires of the charter, unreasonable, and invalid.

Andrew M. Buchmann, Asst. City Atty., and Issiah D. Moore, City Atty., both of New Orleans, for appellant.

E. A O'Sullivan, of New Orleans, for intervener.

W. S. Lewis, of New Orleans, for appellee.

OPINION

SOMMERVILLE, J.

Plaintiff is a lessee of property in Carrollton avenue, in the city of New Orleans, in which he conducts a dry grocery. He was arrested for violating a city ordinance which declares it unlawful 'to establish or operate any sort of business whatever on Carrollton avenue.' Ordinance New Council Series, 9219, adopted November 20, 1912.

Plaintiff alleges that he has been warned by the city police that they would close his place of business, and he asks the court to enjoin the city and its officers from interfering with him and his property, on the ground that the ordinance referred to is unconstitutional, ultra vires of the commission council, unreasonable, extortionate, and undertakes to deprive him of his property without due process of law.

The city answers that in section 1, par. (e), of its charter (Act 159 of 1912, p. 253), the Legislature has provided that:

'The city shall also have all powers, privileges and functions which, by or pursuant to the Constitution of this state, have been, or could be, granted to or exercised by any city.'

And that it is also provided in the charter, section 6, par. 2 (c), that the commission council shall pass ordinances to regulate the location and inspection of 'all places of business likely to be or (which may) become detrimental to health or comfort,' etc. And further that the commission council adopted Ordinance No. 9219, N. C. S., and forbade the establishment of business houses on Carrollton avenue for the comfort of the residents and property owners on that avenue.

The trial court adjudged the ordinance unreasonable; and the city has appealed.

The Legislature long since authorized the city of New Orleans to regulate the location of stables, dairies, and all places of business likely to be or to become detrimental to health; and in 1902 it increased the authority of the city over 'all places of business likely to be or which might become detrimental to health or comfort.' A similar provision is in the city charter of 1912. But the city council, while it had such power since 1902, has not attempted to exclude 'any sort of business whatsoever on' any street or avenue of the city for the 'comfort' of the residents...