City of New Orleans v. Palmisano

• Decision Date: 02 February 1920
• Docket Number: 23830
• Citation: 146 La. 518,83 So. 789
• Court: Louisiana Supreme Court
• Parties: CITY OF NEW ORLEANS v. PALMISANO

83 So. 789

146 La. 518

CITY OF NEW ORLEANS v. PALMISANO

No. 23830

Supreme Court of Louisiana

February 2, 1920

Appeal from First Recorder's Court of New Orleans; J. J Fogarty, Recorder.

Arthur Palmisano was convicted of violating a city ordinance, and he appeals.

Conviction and sentence appealed from annulled, prosecution dismissed, and defendant discharged.

Titche & Rogers, of New Orleans, for appellant.

I. D Moore, City Atty., and George F. Bartley, Asst. City Atty. both of New Orleans, for appellee.

OPINION

O'NIELL, J.

Defendant was prosecuted for operating a gasoline supply tank in front of his automobile repair and supply establishment, at No. 4133 St. Charles avenue, in New Orleans, without having obtained a permit from the commission council of the city.

The ordinance which he was accused of violating, No. 2126 of the Commission Council Series, adopted February 2, 1915, and amended by Ordinance No. 5453, approved July 8, 1919, is as follows, viz.:

"Section 1. Be it ordained by the commission council of the city of New Orleans: That hereafter it shall be unlawful for any person, firm or corporation to install and operate gasoline supply tanks and pumps on the public thoroughfares of the city of New Orleans without a permit to do so having first been obtained from the commission council by ordinance and in accordance with the following provisions.

"(a) Applications for permit shall be submitted to the commissioner of public property.

"(b) Each application shall be accompanied by detailed drawing, in duplicate, showing the proposed location of the tanks and pumps, size and gallons capacity of the same, together with all connections for receiving and delivering gasoline.

"Sec. 2. Be it further ordained, etc.: That the following fee be and the same is hereby established as a charge for occupying public property in connection with the installing and operating of gasoline supply tanks and pumps: For tanks of 250 gallons or less capacity, $ 37.50 per annum, and for tanks of more than 250 gallons capacity, 20 cents per gallon per annum for each gallon in excess of 250 gallons. The said fee shall be paid, through the commissioner of public finances, to the city of New Orleans, on the first day of January of each year; fees for fractional parts of a year shall be paid when permits are granted, and permits shall not be effective until said fees have been paid.

"Sec. 3. Be it further ordained, etc.: That the provisions of this ordinance shall also apply to movable tanks or pumps where same are used on the sidewalk or public thoroughfares of the city of New Orleans.

"Sec. 4. Be it further ordained, etc.: That all persons, firms or corporations who have already installed gasoline supply tanks and pumps on the public thoroughfares of the city of New Orleans shall be required to at once make application for permit in accordance with the terms, conditions, etc., of this ordinance, just as though the tanks and pumps had not already been installed.

"Sec. 5. Be it further ordained, etc.: That any person, firm or corporation who shall violate the provisions of this ordinance shall, upon conviction thereof before a court of competent jurisdiction, be fined not more than $ 25.00 or sentenced to imprisonment for not more than thirty days, or both, at the discretion of said court."

The amendment made on July 8, 1919, was the adoption of the provisions of section 3, making the ordinance apply to portable tanks and pumps, and changing the numbers of the original sections 3 and 4, to 4 and 5, respectively.

Palmisano had been in the automobile repair and supply business at No. 4133 St. Charles avenue for about two years, operating portable tanks for supplying gasoline to automobiles in front of his establishment, when the ordinance was amended so as to apply to portable or movable tanks. He had a ten-year lease on the building and had recently renovated it at an expense of $ 2,500.

Soon after the ordinance was amended so as to apply to portable tanks, Palmisano made application for a permit, and an ordinance was introduced by the commissioner of public property, proposing to grant the permit; but the ordinance was rejected by unanimous vote of the commission council, including the vote of the commissioner who had introduced the ordinance. Four weeks later, Palmisano was arrested by a police officer, on the complaint of some one on the other side of the street.

The...