City of Crowley v. Duson

• Decision Date: 31 May 1920
• Docket Number: 24016
• Citation: 85 So. 226,147 La. 520
• Court: Louisiana Supreme Court
• Parties: CITY OF CROWLEY v. DUSON

85 So. 226

147 La. 520

CITY OF CROWLEY v. DUSON

No. 24016

Supreme Court of Louisiana

May 31, 1920

Rehearing Denied June 30, 1920

Appeal from City Court of Crowley; Denis T. Canan, City Judge.

William W. Duson was convicted of violation of a fire ordinance, and from judgment dismissing charge the City of Crowley appeals.

Reversed, and remanded for further proceedings.

Philip S. Pugh, of Crowley, for appellant.

Smith &amp Carmouche, of Crowley, for appellee.

OPINION

DAWKINS, J.

The city of Crowley appeals from a judgment of the city court dismissing a charge against the defendant for violating the fire ordinance of said city on the ground that said ordinance was illegal and void as exceeding the powers of the city under its charter.

The city of Crowley is incorporated under the Act No. 136 of 1898. Paragraph 8 of section 16 of that act grants to cities and towns incorporated thereunder, among other powers, the right --

"to provide for the prevention and extinguishment of fires, and to organize, establish, and maintain a fire department and to regulate same; to establish fire limits, to regulate, restrain or prohibit the erection of wooden buildings within such limits as may be prescribed by ordinance, and to provide for the removal of same at the expense of the owner thereof when erected contrary to the ordinances of the municipality."

And paragraph 13 of section 15 empowers them --

"to make all needful police regulations necessary for the provisions of good order and the peace of the municipality; and to prevent injury to, destruction of, or interference with public or private property."

Defendant was charged with removing a wooden frame building from one lot to another in said city in violation of the Ordinance No. 73, against the construction or erection of wooden buildings within said fire limits, the second section of which reads as follows:

"Sec. 2. That erection includes removal from one lot to another, and the annexing to present buildings, now erected, of any addition of any nature made, framed in wood, covered either in boards, shingles, tin or iron sheeting, or any combustible materials."

Counsel for the city contends that the power to prevent the erection of a wooden building within the fire limits includes the right to prohibit the removal of such a structure from one lot to another within such district, and that the power is inherent in all municipal corporations, independent of statute or express law, by virtue of their police power, to enact and enforce all reasonable regulations for the safety, health, etc., of their inhabitants, and that this includes the right to provide reasonable rules for the prevention of fires. On the other hand, counsel for defendant argue that the city's power is limited by its charter, and that the power to prevent the erection and to compel the destruction of wooden buildings erected in violation of such restrictions does not include the right to prevent such removal from one lot to another within the fire district.

The decided weight of authority supports the contention of the city both as to the interpretation of the language of the statute with reference to the "erection" of a building and as to its rights under the police power. In R. C. L. vol. 4, p. 403, it is said:

"The weight of authority is that a prohibition against the erection of a wooden building within established fire limits operates to prevent the removal of a building from one part of a fire district to another."

The following cases are cited in support of the text: Kaufman v. Stein, 138 Ind. 49, 37 N.E. 333, 46 Am. St. Rep. 368; Wadleigh v. Gilman, 12 Me. 403, 28 Am. Dec. 188; Red Lake Falls Milling Co. v. Thief River Falls, 109 Minn. 52, 122 N.W. 872, 24 L.R.A. 456, 18 N.Y. Anno. Cas. 182; Eureka City v. Wilson, 15 Utah 67, 48 P. 150, 62 Am. St. Rep. 904.

Even conceding that the terms of paragraph 8 of section 16 of the Act 136 of 1898 are not broad enough to cover the removal of a wooden building from one lot to another within the fire district, we think the general grant of power, if such were necessary, is included in the paragraph 13 of section 15 of said act, quoted above, which gives to municipal corporations organized thereunder the right to enact all such "needful police regulations * * * to prevent injury to, or destruction of * * * public or private property." It could very easily happen that the moving of a wooden structure from an isolated position in the fire district to within close proximity to other buildings would greatly increase the fire hazard, as well as the insurance rate upon other property, and an ordinance prohibiting such would clearly be for the purpose of preventing injury to or destruction of such other buildings. But this court has said, in the case of City of Monroe v. Hoffman, 29 La.Ann. 651, 29 Am. Rep. 345:

"There has been great diversity of opinion as to the power of municipal corporations to restrict the right of property, by forbidding the owner to put up such buildings as he may choose, that is, of such materials as his taste or convenience may induce him to prefer; but we have no hesitation in saying that such regulations, applicable to cities and towns compactly built, fall within the police power of municipal corporations; and the maxim, 'Sic utere tuo ut alienum non laedas,' forbids the owner so to use his property as to imperil that of his neighbors, or to endanger their lives or their health. We think a municipal corporation might, without a special legislative grant...