Osborn v. City of Shreveport

• Decision Date: 27 May 1918
• Docket Number: 22884
• Citation: 143 La. 932,79 So. 542
• Court: Louisiana Supreme Court
• Parties: OSBORN v. CITY OF SHREVEPORT

79 So. 542

143 La. 932

OSBORN v. CITY OF SHREVEPORT

No. 22884

Supreme Court of Louisiana

May 27, 1918

Rehearing Denied June 29, 1918

SYLLABUS

(Syllabus by the Court.)

An agreement containing features of a promise of sale, an option to purchase, and a lease but which is not a sale, of a residence on a residential street within the limits of a municipal corporation, conveys no such property right to the grantee as will entitle him to an injunction restraining the municipal authorities from prosecuting him for carrying on an undertaking business, upon such street, in violation of an ordinance prohibiting the same.

The authority conferred upon a municipal corporation to prevent and prohibit the location, construction, or maintenance of all buildings and all establishments where any nauseous or unwholesome business may be carried on, and to restrict the same within certain limits, includes the authority to prohibit the establishment and maintenance of an undertaking business on a residential street where such business has not theretofore been conducted.

In the absence of any prohibitive ordinance, an undertaker may be prevented, agreeably to the maxim, 'Sic utere tuo ut alienum non laedas,' from establishing his business among residences where such business has not theretofore been conducted.

Lewell C. Butler, City Atty., of Shreveport, for appellant.

Levy &amp Crane and Alexander & Wilkinson, all of Shreveport, for appellee.

Statement of the Case.

OPINION

MONROE, C. J.

An ordinance of the city of Shreveport (No. 27 of 1915) declares it unlawful 'to maintain or operate any undertaking shop or parlor, where bodies are embalmed, kept, or prepared for interment, except on the business streets of the city.' It then names, or designates by localities, the business streets and sections and declares that all others are residential. The petition herein, filed in September, 1917, alleges that, on August 20th of that year, plaintiff had entered into a contract * * * to purchase the Logan residence on Christian street in the residential section of the city, for $ 18,500, of which $ 500 were paid in cash, and the contract, made part of the petition, purports to show an agreement whereby he is to pay the balance in 87 monthly installments (86 of them for $ 208.33 each) or, say, $ 2,500 per annum; to have right of entry upon the premises in December, 1917, and make the first payment on January 1, 1918; to make certain changes therein, at his own expense; to keep the property insured and deliver the policies to the 'vendor'; to have the right to a deed upon paying one-half of the purchase price, provided the interest, taxes, and insurance premiums shall have been paid and all other conditions complied with; the vendor, thereafter, to retain a mortgage and lien for the balance; whereby, should the vendee default in the performance of any of the terms agreed on, or alter the property contrary thereto, the vendor, at his option, may declare the contract forfeited and retain all payments made, 'as liquidated damages and as rent,' and all improvements placed thereon; default, after execution of deed, to mature all payments; and vendee to take reasonable care of property and bear expense of repairs. It appears to have been the intention to execute the instrument in the form of a notarial act, as its recitals begin, 'Be it known that, before me, Sidney N. Cook, a notary public,' etc.; but it bears neither notarial signature nor seal, nor date, save the year 1917 nor does it appear to have been witnessed or registered. There is, however, an admission concerning it to which we will refer a little later. The petition further alleges that plaintiff is an undertaker, conducting one of the largest establishments of that kind in Shreveport, on Texas street (within the business area), and that he has made the purchase in question with the intention of removing and permanently establishing that business on the premises so acquired; that, after making known his intention, he received a communication from the commissioner of public safety, advising him that, if he carried it into effect, he would be arrested and prosecuted under the Ordinance No. 27 of 1915; that the ordinance is void, because ultra vires of the city; and should the court hold that the city charter purports to convey such authority, is unconstitutional, in that it is 'unreasonable, unjust, discriminatory, partial and in contravention of common right,' invades plaintiff's property rights and deprives him of his property without due process of law; and it prays for an injunction, prohibiting the city authorities from arresting and prosecuting petitioner or otherwise enforcing the ordinance, and for judgment decreeing it to be void. A preliminary injunction was issued, after which the city filed an exception to the jurisdiction of the court ratione materiae, on the ground that the civil remedy of injunction cannot be used to oust the jurisdiction of the criminal court of prosecutions under the ordinance. The exception having been overruled, the city answered, and the case went to trial on the merits and upon certain admissions and oral testimony, to wit: It was admitted that plaintiff purchased the residence on a residential street upon the date and for the purpose alleged; that he was then, and had been for years, conducting his business on a business street; and that he received the notice that, if he established it on the premises alleged to have been acquired by him, he would be prosecuted under the ordinance. It was further admitted that two sanitariums and a hospital, grocery stores, livery stables, laundries, blacksmith shops, garages, restaurants, fruit stands, etc., are already established on residential streets; that hotels, where families reside, and a telephone exchange, in which 60 young women are employed, are established on business streets; and that undertaking establishments are permitted on residential streets in New Orleans, Denver, St. Louis, Cleveland, Dallas, and many other cities in the United States. Seven witnesses were called for the plaintiff and none for defendant. Plaintiff, himself (as one of the witnesses called on his behalf), gave the following, with other, testimony:

On his examination in chief:

'Q. Mr. Osborn, I believe that you testified in this case, when it was first up, did you not? A. Yes, sir. Q. In the opinion of the court in this case, the court quoted from your testimony which I will read to you: 'In embalming shops, are any offensive odors ever emitted, when a body is being embalmed? A. No, sir; not after a body is embalmed. Sometimes we have quite a time getting the smell of the disease off, and when we are getting out the gases and getting the smell of disease off, they are not so sweet. Q. Is there any difference in operating on a live patient and on a dead patient, so far as the odor is concerned? A. I don't know; I guess some of those dead bodies are not very sweet and there is an odor. Q. Would that odor be obnoxious? A. I don't know; sometimes it makes it offensive to us until we can get them under control, and I would think, if the neighbors were where they could smell it, or very close at the time, that they would not enjoy it. I have lived over undertakers' shops all my life, and I haven't minded it.'

'Q. Now, with reference to that testimony, did you mean to convey the idea to the court that there were odors around the undertaking shop? A. No. sir. Q. I wish you would explain to the court how long it is before you have gotten a dead body under control, after it is brought into the undertaking shop, irrespective of what its condition is? A. Well, it is a great deal owing to the body; some bodies are very mach decomposed and, of course, it takes longer than an ordinary body. For instance, we get a floater; but, oftener, we get to work, it takes five or ten minutes. * * * Q. Now, then, during the year, is it frequent or infrequent to get bodies decomposed in the morgue? A. Very infrequent. Q. How often? A. I have been where I am at seven years, and I have not had except two or three bodies in very bad condition. * * * Q. If the doors and widows were open, the odors would escape from the room? A. Perhaps they would, but we do not let them get out; we kill them. Q. You endeavor to do that? A. Yes, sir. Q. You would not swear you could absolutely prevent the odors from escaping? A. No, sir.'

No questions were asked him concerning his contract for the purchase of the residence, and all that we find upon that subject is the admission that he had made the purchase, and the instrument by private signature, evidencing an agreement as above stated.

Of the other witnesses who were examined, two were undertakers or embalmers. One witness gave the following testimony, when examined in chief:

'Q. During the time that you have lived here, have you ever lived near an undertaking establishment? A. Not until I lived at Osborn's. Q. How long have you lived there? A. About four years, I think. Q. You did live next to Roll Osborn's undertaking establishment? A. Yes, sir; for three years.'

The inference that we draw is that the witness was a member of either plaintiff's domestic or business establishment, or both. She testifies that she observed no noxious odors. Another witness is a florist, and another an iceman, both of whom have had (by reason of their businesses no doubt) frequent occasion to visit plaintiff's establishment. The florist lived for a year, with his family, over an undertaking shop, and suffered no inconvenience from it, though, being asked whether there were no unpleasant odors coming from it, at times, replied, 'At times, there were, the same as in any other business.' And he further testifies as follows (the question...