City of Shreveport v. Herndon

• Decision Date: 22 June 1925
• Docket Number: 27077
• Court: Louisiana Supreme Court
• Parties: CITY OF SHREVEPORT v. HERNDON

105 So. 244

159 La. 113

CITY OF SHREVEPORT v. HERNDON

No. 27077

Supreme Court of Louisiana

June 22, 1925

Appeal from City Court of Shreveport; David B. Samuel, Judge.

Prosecution by the City of Shreveport of E. B. Herndon, Jr., for violation of a traffic ordinance. Defendant's demurrer was sustained, and the City appeals.

Affirmed.

James U. Galloway and B. F. Roberts, both of Shreveport, for appellant.

George Thurber, of Shreveport, for appellee.

O'NIELL C. J. LAND, J., dissents, ST. PAUL, J.

OPINION

O'NIELL, C. J.

The question in this case is whether a certain traffic ordinance of the city of Shreveport is valid. The defendant was prosecuted under an affidavit charging that he had parked his automobile longer than 15 minutes in a 15-minute parking zone in the 600 block on Market street in front of the office of the Western Union Telegraph Company in violation of the Ordinance No. 210 of 1923. He filed a demurrer, or motion to quash the affidavit, pleading that he was not accused of any crime or offense, and that the ordinance was unconstitutional. The judge of the city court adjudged the ordinance unconstitutional, and therefore sustained the demurrer. The city has appealed from the decision.

The ordinance reads as follows:

"An ordinance delegating to the commissioner of public safety certain authority to enforce rules and regulations regarding traffic; providing penalty for the violation of the provisions of this ordinance.

"Section 1. Be it ordained by the city council of the city of Shreveport in legal and regular session convened, that the commissioner of public safety shall have the power to adopt and enforce the following rules:

"(a) Designating certain streets or parts of streets upon which there shall be no parking of vehicles, or upon which there shall be parking for only a limited time.

"(b) Excluding or restricting parking on designated streets during certain hours.

"(c) Prohibiting left-hand turns by vehicles at certain street corners.

"(d) Designating certain zones as loading and unloading zones, and restricting parking within limits of same by all vehicles other than commercial; establishing in these zones a limit of time during which commercial vehicles may stand for the purpose of loading and unloading.

"(e) Prohibiting vehicles from parking in front of any driveway or entrance to a building where such entrance provides ingress or egress to property other than alleys.

"Section 2. Be it further ordained, etc., that the commissioner shall have authority when he deems it necessary in the interest of public safety to close any portion of an alley or street to vehicle traffic or foot traffic, and to detour same.

"Section 3. Be it further ordained, etc., that where any special restriction shall be placed in effect by the commissioner of public safety, as above set forth, same shall be given to the public through the official journal of the city of Shreveport; and when said commissioner shall deem it necessary he shall place signs at such points showing the scope of such ruling.

"Section 4. Be it further ordained, etc., that any rule established by the commissioner of public safety may be revoked by a majority vote of the city council in regular session convened.

"Section 5. Be it further ordained, etc., that any person or persons violating any rule or rules established by the commissioner of public safety as outlined in this ordinance, shall be prosecuted in the city court of the city of Shreveport and, upon conviction, shall be fined not less than five ($ 5.00) dollars, nor more than one hundred ($ 100.00) dollars, and not more than sixty days in jail, or shall suffer both fine and imprisonment at the discretion of the court, and in default of payment shall work out said fine at the rate of one ($ 1.00) dollar per day.

"Section 6. Be it further ordained, etc., that each separate day that such violation shall continue shall constitute a separate offense."

The complaint in the defendant's plea is that the ordinance does not prescribe any parking rule or regulation for the guidance of the commissioner of public safety, but delegates to him the authority to make and enforce any such rule or regulation that he may deem proper at any time or place. Hence it is pleaded that the ordinance is violative of the due process clause and the equal protection clause of the Fourteenth Amendment of the Constitution of the United States, and the due process clause in section 2 of article 1 of the Constitution of the state. It is also pleaded that the ordinance violates the provisions of article 2 of the Constitution of the state, dividing the powers of government into the three departments, the legislative, executive, and judicial, and forbidding any officer in any one of the departments to exercise any power properly belonging to either of the other departments.

The city of Shreveport is under the commission form of government, provided by Act 302 of 1910. The city's attorneys say that the statute authorizes the commission council to delegate to the commissioner of public safety the authority to enforce traffic rules. The authority merely to enforce traffic rules or ordinances enacted by the commission council, however, does not include the authority to make the rules or ordinances in the unlimited way in which this ordinance undertakes to delegate the authority. The statute distributes the powers and duties of the commission council among five departments, viz.: (1) The department of public affairs and public education; (2) of accounts and finances; (3) of public safety; (4) of public utilities; and (5) of streets and parks. The statute declares that the mayor of the city shall be superintendent of the department of public affairs and public education, and that one of the four councilmen shall be superintendent of each of the four other departments named.

There is nothing in the statute that purports to allow the council to delegate to the superintendent of any department the authority to adopt and enforce all rules and regulations pertaining to his department, in the form of penal ordinances, subject to revocation by a majority vote of the council itself. That is what this ordinance purports to do. It undertakes to delegate to the commissioner of public safety the power to adopt and enforce rules: (1) Prohibiting the parking of vehicles on any street or part of a street where he thinks parking should be forbidden; (2) fixing the limit of time in which parking shall be allowed, or the hours of the day during which it shall...