City of Shreveport v. Dusis

• Decision Date: 13 March 1922
• Docket Number: 25100
• Citation: 91 So. 294,150 La. 911
• Court: Louisiana Supreme Court
• Parties: CITY OF SHREVEPORT v. DUSIS

91 So. 294

150 La. 911

CITY OF SHREVEPORT v. DUSIS

No. 25100

Supreme Court of Louisiana

March 13, 1922

Appeal from City Court of Shreveport; D. B. Samuels, Judge.

Frank Dusis was convicted of violating certain city ordinances, and he appeals.

Affirmed.

Cal. D Hicks, of Shreveport, for appellant.

George G. Dimick, of Shreveport, for appellee.

OPINION

THOMPSON, J.

The defendant was charged by affidavit with violating certain city ordinances of the city of Shreveport, was tried before the city judge, convicted, and sentenced to pay a fine of $ 10 and costs, and in the alternative to serve 10 days in jail. He brings this appeal, and relies for a reversal of the conviction and sentence and for his discharge on grounds set forth in a motion to quash the affidavit, which he filed before pleading to the accusation.

The charge made in the affidavit is that defendant --

"unlawfully did apply a building of one class, to wit, a residence at No 612 Market street, to the use of another class, to wit, a business building for which a better system of construction is required under the Building Code, without making the construction and equipment of such building conform to the requirements for such intended use, all in violation of the ordinances of the city of Shreveport and against the peace and dignity of the same."

The building Code of the city of Shreveport was compiled in 1916, and its title reads:

"An ordinance establishing a Code to govern the construction, alteration, addition, repairs, moving and demolishing of buildings and their equipment and appurtenances; providing for the safety of workmen and the public; providing fire prevention rules; fixing penalties for violations and repealing all ordinances or parts of ordinances in conflict herewith."

Section 9 of the Code, being one of the ordinances under which the charge is made, provides:

"No building or structure or part thereof, of one class, shall be applied to the use of any other class for which a better system of construction is required by this Code, until the construction and equipment of such building or structure or part thereof, is first made to conform to the requirements of this Code for said intended use."

"No change in the manner of occupancy shall be made in any story of any building or structure, or part thereof, tending to increase the floor loads or the number of persons to be accommodated therein until there shall have been issued a certificate of occupancy, covering such new use or manner of occupancy; nor shall the manner of occupancy nor the purpose for which building or structure, or part thereof is used, be changed, except in conformity with the requirements of this Code as to exits and floor loads."

Section 10 of the Code provides for the classification of buildings according to the method of construction, such as frame buildings, nonfireproof construction, ordinary construction, mill construction, fireproof construction.

Section 11 provides the classification as to occupancy, such as public buildings, residence buildings, and business buildings.

Section 98 provides:

"All ordinary construction nonfireproof buildings of classes C and D, where the lower stories or portions thereof are used for business and the stories above for residence purposes, shall have all partitions and ceilings separating the business portions from the residence portions, covered with 3/4 inches of cement or cement tempered plaster on metal lath or plaster fiber board, or plaster board covered with sheet metal, or other equivalent fireproofing approved by the building inspector."

We have copied the foregoing provisions of the Code at length, because of the contention of defendant's counsel that the affidavit charges the defendant with no act which is a violation of any ordinance of the city. The sections quoted define public, residence, and business buildings, and places them in different classes. And the use of a building of one class for purposes appertaining to another class is expressly forbidden. That is the precise charge against the defendant. The ordinances themselves furnish sufficient answer to the first complaint of the motion to quash.

The second ground of attack is that there is no penalty attached to or connected with the ordinances.

Section 320 of the Building Code provides that a person who shall construct, alter, remove, move, or maintain a building or structure or any of its appurtenances or do any work in violation of any of the provisions of this Code shall be guilty of a misdemeanor, punishable, etc. The penal clause is broad enough to include the particular act of violation charged against the defendant.

Whether it is inoperative or ineffective as applied to the defendant will be discussed when we come to consider his fourth and fifth ground of complaint.

The third cause of attack is that the ordinances as applied to defendant are ineffective and retroactive, because the house had already been erected and in operation as a business quarter, and had been before the passage of the ordinances. The point involves a question of fact to be determined on the trial of the merits, and has no place in a motion to quash. It was within the province of the trial judge to decide...