City of New Orleans v. Lafon

• Decision Date: 03 November 1952
• Docket Number: No. 19898,19898
• Citation: 61 So.2d 270
• Parties: CITY OF NEW ORLEANS v. LAFON.
• Court: Court of Appeal of Louisiana — District of US

Page 270

61 So.2d 270

CITY OF NEW ORLEANS v. LAFON.

No. 19898.

Court of Appeal of Louisiana, Orleans.

Nov. 3, 1952.

Rehearing Denied Dec. 1, 1952.

Writ of Certiorari Denied Jan. 12, 1953.

Henry B. Curtis, City Atty., Sidney C. Schoenberger, Asst. City Atty., New Orleans, for plaintiff and appellee.

Gatlin & Hill, New Orleans, for defendant and appellant.

JANVIER, Judge.

This is a suit brought by the City of New Orleans, appearing through the Mayor and the City Attorney, authorized by motion of the Commission Council, to enjoin the defendant, Camille Lafon, from operating on certain property which she owns: 'A trailer court wherein space is rented for the parking and servicing of house trailers; generally 7 or 8 in number, with provisions being made for the parking and servicing of ten such house trailers.'

It is alleged that in so operating the property which, under the Comprehensive Zone Law of the City of New Orleans (Ordinance 11,302 C.C.S. as amended), is in an area classified as 'C' Apartment, the defendant is in violation of the zone regulations for the reason that the conducting of a commercial business in such a zone is not permitted.

In a supplemental petition it is alleged that, should it be held that the property is not being used for commercial purposes but for residential units, since each trailer on the said lot is used by a family, nevertheless the property is being used in violation of the said Comprehensive Zone Law, for the reason that there are eight separate units on the two lots, which lots are not of sufficient area to comply with the provisions of the said zone law which requires that in such case 'every building hereafter erected shall be located upon a lot as herein defined.'

On behalf of defendant there were filed various pleas and exceptions: (1) That the Civil District Court and this court are without jurisdiction, for the reason that the alleged violation of the ordinance is a crime or misdemeanor for the prosecution of which the appropriate criminal court alone has jurisdiction; (2) That 'this cause is res adjudicata', for the reason that exceptor was charged with the same violation before the proper court of criminal jurisdiction, was convicted therein, appealed from said conviction, and was discharged by the proper appellate court, which held that the identical matters and things alleged in this suit did not constitute a violation of the Comprehensive Zone Law of the City of New Orleans; (3) That should an injunction issue in this matter, the defendant would be placed in double jeopardy, for the reason that should she violate the terms of the injunction, she would make herself liable to punishment for contempt and thus might, for the second time, be placed in jeopardy for the same offense with which she was charged in the criminal proceeding; (4) That the petition discloses no right or cause of action; and (5) That the petition is so vague and indefinite that defendant cannot safely answer thereto.

When the matter came up for hearing on the rule for a preliminary injunction, the following stipulation was entered into:

'It is agreed and stipulated between opposing counsel that this case shall be considered by the Court on the merits, and whatever judgment is rendered shall be considered as a final judgment of this court.'

After a trial on the merits, there was judgment in favor of the City of New Orleans enjoining the defendant, Camille Lafon, from using as a trailer court for the parking and servicing of house trailers the following described property:

'A certain piece or portion of ground, together with all improvements thereon and appurtenances thereunto belonging or in any wise appertaining situated in the First District of the City of New Orleans, in Square 779 thereof, said square being bounded by Baudin, D'Hemecourt and S. Solomon Streets and S. Carrollton Avenue; said portion of ground is composed of Lots 8 and 9 in said square 779; Lot 8 measures 32'1"'6'"' front on S. Carrollton Avenue, 32'0"'0"'' in width in the rear, 126'3"'1"'' depth on the side line of Lot 7, and 128'11"'2'"' depth on the side line toward Lot 9. Lot 9 adjoins Lot 8 and measures 32'1"'6"'' on S. Carrollton Avenue, 32'4"'0"'' in width in the rear, and 128'11"'2"'' on the side line next to Lot 8, and 131'7"'4"'' on the side line next to Lot 10, being the same property acquired by Camille Lafon on May 23, 1941, registered C.O.B. 518, folio 34.'

From that judgment the matter is now before us on appeal.

There is no important disagreement over the facts, there being a stipulation in the record from which we gather the following.

Camille Lafon is the owner of the property which is being used as a trailer court and which has been so used for approximately six years, prior to which time the property was vacant. The property consists of two lots measuring approximately 32 feet each, fronting on South Carrollton Avenue, by a depth of 129 feet, with a square footage of approximately 8.256 feet for the two lots. At the present time there are eight trailers on the property, each occupied by a separate family as a living unit. The trailers are not self-propelled but may be readily moved by an automobile, tractor or some other motor power. The 'trailers are not permanent fixtures or permanent houses,' meaning 'the trailers come and go; one leaving and another comes in, or two or more come in.'

It is further stipulated that, under the terms of the ordinance, the property on which the trailer parking lot is operated is within an area classified as 'C' Apartment; that the ordinance contains a penal provision under which the violation thereof is made a misdemeanor punishable by fine or imprisonment or both; that the defendant was heretofore charged in the Recorder's Court and was convicted, but that she appealed to the Criminal District Court where 'the conviction was reversed and the charge was dismissed.' It is further stipulated that the 'defendant is making use of said property in the same manner as she was at the time this criminal prosecution was instigated.' The charge in the Recorder's Court was 'that the defendant had more than one building upon any one lot.' It is further stipulated that, since the dismissal of the charge in the criminal court, defendant 'did install sanitary facilities in the nature of plumbing utilities, and that the City of New Orleans, Sewerage and Water Board, issued its certificate of final inspection approving it for the specific purpose of servicing the trailers.'

Before proceeding to the merits of the controversy, we shall discuss the various preliminary questions raised by defendant's pleadings. First, it is said that the civil courts are without jurisdiction, for the reason that the zoning laws provide for criminal prosecution and for fine and imprisonment or both.

In City of New Orleans v. Liberty Shop, 157 La. 26, 101 So. 798, 799, 40 A.L.R. 1136, this identical question was considered, and, in spite of a vigorous protest by one of the Justices, the Court said:

'The judgment appealed from is founded upon the proposition that the equity power of the courts, or the authority of a court whose jurisdiction is confined to civil cases, does not extend to the enforcement of the criminal laws by injunction, or to the prevention of violations of the criminal laws. As a rule, that is true; but the rule has its exceptions. An injunction should not be issued to prevent the commission of a crime, if the only reason for preventing it is that it is a crime. But, if the wrong complained of is injurious to property interests or civil rights, or if it is a public nuisance, either in the opinion of the court or in virtue of a statute or an ordinance making it a nuisance, the fact that it is also a violation of a criminal statute or ordinance does not take away the authority of a court of civil jurisdiction to prevent the injury or abate the nuisance.'

It is argued that a distinction may be made, based on the fact that in that case the suit was for the purpose of abating a nuisance, whereas here the purpose of the suit is to enjoin the defendant from violating the zoning law. That was the identical purpose which appeared in the Liberty Shop case. In this case, as in that, the purpose of the suit was to enjoin the violation of the zoning law, and, as a matter of fact, the violation of such a zoning law is a nuisance 'per se' as the Supreme Court so stated in that case, saying that the declaration that an establishment is unlawful, since it is in violation of a zoning law, 'is the same as to say that the establishment shall be deemed a nuisance.' The Court said:

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