City of Shreveport v. Dickason

Citation107 So. 427,160 La. 563
Decision Date01 February 1926
Docket Number27562
CourtSupreme Court of Louisiana
PartiesCITY OF SHREVEPORT v. DICKASON

Rehearing Denied March 1, 1926

Appeal from First Judicial District Court, Parish of Caddo; T. F Bell, Judge.

Suit by the City of Shreveport against Mrs. Blanche Dickason. Judgment for plaintiff, and defendant appeals.

Avoided, and judgment rendered for defendant.

Barksdale Bullock, Warren, Clark & Van Hook, of Shreveport, for appellant.

B. F. Roberts, of Shreveport, for appellee.

BRUNOT J. O'NIELL, C. J., and LAND, J., dissent.

OPINION

BRUNOT, J.

The defendant is the owner of four lots of ground in the Guy & Stinson subdivision of the city of Shreveport. She applied to the building inspector for a permit to erect a gasoline filling station on the property. The permit was denied, and she instituted mandamus proceedings to compel its issuance. The defense to that suit was that Ordinances Nos. 7 of 1922 and 235 of 1923 of the city of Shreveport had zoned the section of the city in which plaintiff's lots were situated, and the erection of business buildings within the territorial limits fixed in said ordinances was prohibited. Plaintiff's suit was dismissed by the district judge, but on appeal to this court we held that the two ordinances relied upon by the city were invalid because they did not define the district they proposed to create with reasonable certainty, and we therefore ordered defendant to issue the permit applied for. State ex rel. Dickason v. Harris, 105 So. 33, 158 La. 974.

While the case referred to was pending in the district court, the city council adopted and promulgated Ordinance No. 110 of 1924. Following the rendition of the judgment of the district court in that case and the perfection of an appeal therefrom, section 3 of Ordinance No. 110 of 1924 was amended by the adoption of Ordinance No. 177 of 1924. These ordinances are as follows:

"No. 110 of 1924.

"An ordinance, by Stringfellow.

"To establish certain residential districts in the city of Shreveport and to prohibit the erection of places of business in said residential districts in accordance with provisions of section 29 of article XIV of the Constitution of the state of Louisiana, for 1921; and to provide a penalty for the violation of this ordinance and to carry the same into immediate effect as an emergency ordinance.

"Section 1. Be it ordained by the city council of the city of Shreveport in regular session convened, that availing itself of the provision of section 29, of article XIV of the Constitution of the state of Louisiana of 1921, the city council does hereby establish residential zones of the hereinafter described territory of the city of Shreveport and create the same as residential districts in which there shall not be established or constructed any place or places of business for commercial or other purposes, other than for residences, to be occupied as a dwelling by one or more families with the privilege of erecting on the same a private garage.

"Section 2. Be it further ordained, etc., that the following territory is hereby defined to be the residential zones set forth in section 1 as follows, to wit: (Then follows description by boundaries of four separate areas).

"Section 3. Be it further ordained, etc., that within the territory above described in section 2 herein is declared to be a residential zone, and that there shall not be constructed any commercial or business houses or filling stations, public garage, or any other business of any character unless an application shall be made therefor to the city council and the same receive the approval of the council by special ordinance amending this ordinance in each separate case.

"Section 4. Be it further ordained, etc., that the building inspector be and he is hereby prohibited from the issuance of any permit of any kind whatsoever for any commercial or business houses to be constructed within the residential zones herein set forth and described in section 2 of this ordinance.

"Section 5. Be it further ordained, etc., that any person, firm, or corporation violating the provisions of this ordinance and erecting any business house to be used for commercial purposes of any kind without authority from the city council shall be subject to a fine of not less than $ 25 nor more than $ 500 or imprisonment not less than 10 days nor more than 60 days, or both, at the discretion of the court; and this ordinance may likewise be enforced by injunction before any court of competent jurisdiction; and each day that this ordinance is so violated shall constitute a separate offense.

"Section 6. Be it further ordained, etc., that nothing in this ordinance shall be construed as canceling any permit heretofore granted prior to the passage of this ordinance or to require the destruction or demolishing of any business house already in existence at the time of the passage of this ordinance but the legal rights of such occupants or owners shall be duly and legally preserved and this ordinance shall take effect immediately.

"Section 7. Be it further ordained, etc., that this ordinance is declared to be an emergency ordinance and shall go into immediate effect upon its promulgation."

"Ordinance No. 177 of 1924.

"By Mr. Stringfellow:

"An ordinance amending and re-enacting section 3 of Ordinance No. 110 of 1924, the same being an ordinance to establish certain residential districts in the city of Shreveport, and to prohibit the erection of places of business in said residential districts in accordance with provision of section 29, article 14, of the Constitution of the state of Louisiana for 1921; and to provide a penalty for violation of this ordinance; and to carry the same into immediate effect as an emergency ordinance.

"Section 1. Be it ordained by the city council of the city of Shreveport, in legal and regular session convened, that section 3 of Ordinance 110 of 1924, being an ordinance to establish certain residential districts in the city of Shreveport and to prohibit the erection of places of business in said residential districts in accordance with provision of section 29, article 14, of the Constitution of the state of Louisiana for 1921, be amended and re-enacted so as to read as follows:

"'Section 3. Be it further ordained, etc., that the territory above described in section 2 hereof is hereby declared to be residential property and there shall not be constructed therein any commercial or business house, filling station, public garage, or business of any character.'

"Section 2. Be it further ordained, etc., that this ordinance shall go into effect immediately as an emergency measure."

On July 3, 1925, the city council adopted Ordinance No. 114, which we also quote:

"Ordinance No. 114 of 1925.

"By Mr. Stringfellow:

"An ordinance creating a residential district of all property fronting and abutting on Samford avenue from the southern side of St. Vincent to Wilkinson street, and prohibiting the establishment of all places of business in said residential district, providing penalties for the violation of this ordinance and carrying the same into effect immediately as an emergency ordinance.

"Section 1. Be it ordained by the city council of the city of Shreveport that all property within the city of Shreveport fronting and abutting on Samford avenue from the southern side of St. Vincent avenue to Wilkinson street is hereby created and declared to be a residential district.

"Section 2. Be it further ordained, etc., that it shall be unlawful for any person, firm or corporation to erect, construct or maintain any place of business of any kind or character within said residential district, and that it is hereby declared that the erection, construction or maintenance of any business house or building in said district is a public nuisance.

"Section 3. Be it further ordained, etc., that any person who violates the provisions of this ordinance shall upon conviction pay a fine of not less than one hundred dollars nor more than five hundred dollars or may be imprisoned not more than thirty days, or suffer both fine and imprisonment at the discretion of the court.

"Section 4. Be it further ordained, etc., that the building inspector of the city of Shreveport shall issue no permits for the erection of any business building within the above described residential district.

"Section 5. Be it further ordained, etc., that, inasmuch as an emergency exists which requires the immediate passage of this ordinance, that this ordinance shall go into effect immediately as an emergency ordinance."

Under the provisions of the foregoing ordinances the plaintiff brought the suit which is now before us. The prayer of the petition is for a rule upon defendant to show cause why a preliminary injunction should not issue, for a temporary restraining order, and, after trial, for judgment perpetuating the injunction. Plaintiff was ruled into court to produce certain documents. The rules were discharged. A motion to dissolve the restraining order and an exception of no cause of action were then filed, but, after a hearing thereon, the motion and exception were overruled, and a preliminary injunction was granted the plaintiff. This was followed by a motion for a new trial, which was also overruled, and finally the answer of defendant.

The defenses to the suit are found in the motion to dissolve the restraining order and in the answer. They are as follows:

That the judgment of this court in the Dickason-Harris suit (105 So. 33, 158 La. 974), is conclusive of defendant's right to the permit, the issuance of which is ordered by said judgment; that Ordinances Nos. 110 and 177 of 1924, if valid except from their operation permits issued prior to their...

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  • Summerell v. Phillips
    • United States
    • Louisiana Supreme Court
    • 4 Mayo 1971
    ...State ex rel. Civello v. City of New Orleans, 154 La. 271, 97 So. 440, 33 A.L.R. 260. The plaintiff relies upon City of Shreveport v. Dickason, 160 La. 563, 107 So. 427 and State ex rel. Fitzmaurice v. Clay, 208 La. 443, 23 So.2d 177. Both cases are The Shreveport case presented novel circu......
  • City of New Orleans v. Levy
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    ...the Equal Protection clause of the United States Constitution.' And in support of such contention defendants rely on City of Shreveport v. Dickason, 160 La. 563, 107 So. 427 and Simmons v. City of Shreveport, 221 La. 902, 60 So.2d 867 wherein this court approved the principle set out by the......
  • Russian Hill Imp. Ass'n v. Board of Permit Appeals of City and County of San Francisco
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    ... ... Kilbourne (1929) 109 Conn. 422, 147 A. 124; City of Shreveport v. Dickason (1926) 160 La. 563, 107 So. 427; Alexander v. Building Inspector of Provincetown (Mass.1966) 214 N.E.2d 876; Fleming v. Moore Bros ... ...
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    ...La. 271, 97 So. 440, 33 A. L. R. 260), if anything, lends support to the foregoing view. The ruling in City of Shreveport v. Dickason, 160 La. 563, 107 So. 427, is not contrary to that view. In that case it appears that in a prior case between the same parties (158 La. 974, 105 So. 33) this......
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