City of New Orleans v. Mangiarisina

• Citation: 71 So. 886,139 La. 605
• Decision Date: 24 April 1916
• Docket Number: 21879
• Court: Supreme Court of Louisiana
• Parties: CITY OF NEW ORLEANS v. MANGIARISINA

71 So. 886

139 La. 605

CITY OF NEW ORLEANS v. MANGIARISINA

No. 21879

Supreme Court of Louisiana

April 24, 1916

Rehearing Denied May 22, 1916

Hiddleston Kenner, of New Orleans, for appellant.

W. L Hughes, of New Orleans, for appellee.

SOMMERVILLE and O'NIELL, JJ., take no part.

OPINION

PROVOSTY, J.

The accused was prosecuted before the Second recorder's court for violation of the following ordinance:

An Ordinance Defining Rat-Proofing of All Buildings.

An ordinance to better protect the public health, and particularly to prevent the introduction and spread of bubonic plague, by providing for the rat-proofing of all buildings, outhouses and other superstructures, stables lots, open areas and other premises, sidewalks, streets and alleys in the city of New Orleans.

Whereas, during the month of June, 1914, the bubonic plague made its appearance in the city of New Orleans, and thereby threatened the health and lives of the people through the ravages of the dread disease, and menaced the prosperity of the entire community through the imminence of destructive quarantines; and,

Whereas, the city government and the state and city health authorities, in earnest effort to avert the calamities aforesaid, solicited and secured the co-operation and active assistance of the United States Public Health Service in dealing with the crisis impending; and,

Whereas, the board of health of the parish of Orleans and the city of New Orleans, with the concurrence and advice of the United States Health authorities, enacted certain ordinances designated to eradicate and prevent both rodent and human infection from the said bubonic plague, among which said ordinances were Ordinances Nos. 17 and 21 of the board of health series; and,

Whereas, the honorable Supreme Court of the state of Louisiana has, in the case of the city of New Orleans versus Miss M. Sanford et al., held that the said ordinances, although under the stringent circumstances of the case justified and necessary, yet solely because of a certain detail of discretionary executive authority vested thereby in the city health officer, and which authority it is admitted in the opinion of said court has not been by said officer improperly or oppressively exercised, they held, the said ordinances were unconstitutional, and hence null and void; and,

Whereas, the work of the authorities under the health ordinances aforesaid has, up to the present time, entirely averted the disastrous menace of the plague, still the said work is by no means finished, nor is the menace of infection and the spread of the disease finally eliminated; and,

Whereas, abandonment of the work under said ordinances or delay in the prosecution thereof is fraught with grave danger to the health of the people and the commercial prosperity of the community, the commission council of the city of New Orleans is not only constrained by the dictates of prudence, but feels in solemn duty bound to re-enact in the legal form prescribed by the honorable Supreme Court the said health ordinances which the said court has held are, in purpose, both justifiable and necessary. Now therefore:

Section 1. Be it ordained by the commission council of the city of New Orleans, that from and after the promulgation of this ordinance that every building, outhouse and other superstructure, stable, lot, open area and other premise, sidewalk, street and alley, now constructed, or hereafter to be constructed in the city of New Orleans, shall be rat-proofed in the manner hereinafter provided for.

Sec. 2. Be it further ordained, etc., that it shall be unlawful for any person, firm or corporation to have or maintain, or hereafter to construct any building, outhouse or other superstructure, stable, lot, open area or other premise, sidewalk, street or alley within the city of New Orleans, unless the same shall be rat-proofed in the manner hereinafter provided for.

Sec. 3. Be it further ordained, etc., that for the purpose of rat-proofing, all buildings, outhouses and other superstructures in the city of New Orleans, except stables, shall be divided into three classes, to wit: Class A, Class B and Class C; and the same shall be rat-proofed in the manner following, to wit:

Class A -- All buildings, outhouses and other superstructures of class A shall have floors made of concrete, which concrete shall be not less than three (3) inches thick, and overlaid with a top dressing of cement, mosaic tiling, or other impermeable material, laid in cement mortar, and such floor shall rest without any intervening space between, upon the ground, or upon filling of clean earth, sand, cinders, broken stone or brick, gravel or similar material, which filling shall be free from animal or vegetable substances; said floor shall extend, and be hermetically sealed, to walls surrounding said floor, which walls shall be made of concrete, stone or brick, laid in cement mortar, and each wall to be not less than six (6) inches thick, and shall extend into and below the surface of the surrounding ground at least two (2) feet, and shall extend not less than one (1) foot above the surface of said floor; provided that wooden removable gratings may be laid on such concrete floors in such parts of such buildings, superstructures and outhouses as are used exclusively as sales departments.

Class B -- All buildings, outhouses and other superstructures of class B shall be set upon pillars or underpinning of concrete, stone or brick, laid in cement mortar, such pillars or underpinning to be not less than eighteen (18) inches high, the height to be measured from the ground level to the top of said pillars or underpinning; and the intervening space between said building and the ground level to be open on three (3) sides, and to be free from all rubbish and other rat-harboring material, or may be made rat-proof by constructing at the margin of the ground area of said building a wall of concrete or brick or stone laid in cement; such wall to extend into and below the surface of the ground at least two (2) feet and to meet the floor of the building above closely and without any intervening space, such walls shall be at least six (6) inches thick and extend entirely around said building; provided that said walls may be built with openings therein for ventilation only, and provided further, that such openings for ventilation may be of such size as the owner may elect and shall be securely screened with metallic gratings having openings between the bars of said gratings of not more than one-half inch, or with wire mesh of not less than twelve gauge, having openings between the wires of said mesh of not more than one-half inch, and the whole so constructed and closed as to prevent the entrance of rats beneath such building.

Class C -- All buildings, outhouses and other superstructures of class C shall be rat-proofed as provided in class A except that tar-cinder composition flooring, as hereinafter defined and provided for, may be substituted for the concrete floors provided for in class A. That tar-cinder flooring hereinabove provided for, is hereby defined to be a composition of cinders and coal tar only, and, when laid, to be covered by a wooden floor.

The cinders used in the composition shall be free of soft ash and clinkers and shall be brought to the work dry.

The coal tar used in the composition shall be the product of the dry distillation of coal, and shall contain not more than two (2) per cent of water, and shall be free from any mixture with other substance or thing.

The composition of, and manner of laying, tar-cinder composition flooring shall be as follows:

To each cubic yard of such cinders shall be added twenty gallons of such coal tar, the whole to be thoroughly mixed on the work where the same is to be laid, and no other substance or thing to be added thereto. This composition shall be laid between the walls hereinabove provided for in rat-proofing buildings of class A, and cover the whole space to be floored, and the whole to be thoroughly tamped or rolled, as provided for hereinafter. The sleepers to be used in the laying of such flooring shall be creosoted by having the creosote pressed into each sleeper, under a pressure of not less than fifteen pounds to the square foot, and such sleepers shall be laid in such composition before the whole of said composition is rolled or tamped, and provided further, that after such sleepers are laid in such composition, and after the whole shall be so rolled and tamped, the whole shall be not less than four (4) inches thick in its thinnest part. Upon this composition and sleepers, shall be laid a wooden flooring of the quality now provided or hereafter to be provided for in the building laws of the city of New Orleans, provided, however, that for the purpose of laying a tar-cinder composition floor, said wooden flooring shall be tongue and groove, well fitted, and the planks firmly set into each other, and the whole, in such manner as to prevent the ingress or egress of rats.

Sec. 4. Be it further ordained, etc., that every restaurant kitchen, hotel kitchen, cabaret kitchen, dairy, dairy depot, dock, wharf, pier, elevator, store, manufactory and every other building, outhouse or superstructure, wherein or whereon foodstuffs are stored, kept, handled, sold, held or offered for sale, manufactured, prepared for market or for sale, except stables, shall be rat-proofed in the manner provided for hereinabove as class A; provided that such part of any structure hereinabove defined as of class A, that shall be entirely over a body of water, may be rat-proofed as of class B, as hereinafter provided for.

'Foodstuffs,' as used in this ordinance, is hereby defined to be flour...