Ransome v. Police Jury of Parish of Jefferson, 39134

• Decision Date: 13 February 1950
• Docket Number: No. 39134,39134
• Citation: 216 La. 994,45 So.2d 601
• Parties: RANSOME et al. v. POLICE JURY OF PARISH OF JEFFERSON.
• Court: Louisiana Supreme Court

Page 601

45 So.2d 601

216 La. 994

RANSOME et al. v. POLICE JURY OF PARISH OF JEFFERSON.

No. 39134.

Supreme Court of Louisiana.

Feb. 13, 1950.

Rehearing Denied March 20, 1950.

John E. Fleury, Gretna, Willis C. McDonald, New Orleans, for defendant-appellant.

Louis H. Marrero, III, Marrero, for plaintiffs-appellees.

HAWTHORNE, Justice.

On May 14, 1947, the Police Jury of the Parish of Jefferson, acting under and by virtue of the authority of Article 14, Section 29(a), of the Constitution of this state, created a residential district designated as 'Residential District No. 1 of the Parish of Jefferson, State of Louisiana'. The ordinance establishing this residential district was submitted for approval to the resident property taxpayers of the district at an election held for that purpose on June 17, 1947. On June 18 the police jury met for the purpose of canvassing and counting the ballots cast at the special election, and ascertained that the ordinance had been approved unanimously both in number of votes and in amount of property assessment. The results of the election were duly promulgated in a newspaper published in the parish.

On August 20, 1947, plaintiffs, Clyde Ransome and Ernest E. Moise, as owners of Lot L of the Kostmayer Subdivision in the Parish of Jefferson, situated within Residential District No. 1 of that parish, instituted this suit against the police jury seeking to have the police jury ordinance, the election, and the canvassing and the promulgation of the returns thereof cancelled, recalled, annulled, and vacated insofar as they affected plaintiffs' property, for the reason that they were inoperative, unconstitutional, null, and void because they constituted a taking of petitioners' property without due process of law, contrary to Article 1, Section 2, of the Constitution of this state and the Fifth and Fourteenth Amendments of the Federal Constitution, and also because action thereunder would constitute an impairment of the obligation of contracts, contrary to Article 4, Section 15, of the Constitution of this state and Article 1, Section 10, of the Constitution of the United States, and, further, because the zoning ordinance would be retroactive if applied to petitioners' property. The district court rendered judgment for plaintiffs as prayed for, and the police jury has appealed.

The record discloses that these plaintiffs acquired Lot L on April 24, 1947, prior to the effective date of the zoning ordinance, and shortly after its acquisition commenced the construction of a building thereon to be used for commercial purposes, that is, as a 'seafood establishment'. On May 2, 1947, while this building was under construction and was more than half completed, an injunction suit was filed against these plaintiffs by Ernest J. Holloway, a resident of the subdivision in which plaintiffs' lot is located. Plaintiff's cause of action in that suit was that the defendants therein were violating restrictions as to the use of property contained in various deeds to plaintiff and other persons of property in the subdivision. A temporary restraining order was granted enjoining the defendants from continuing with the construction of the building. In that suit the rule nisi was fixed for trial for May 12, 1947, and, according to the allegations of plaintiffs' petition in the instant suit, at the request of Holloway's attorneys the trial was continued from time to time and was finally had on July 1, 1947. The district court rendered judgment enjoining and restraining defendants therein from continuing with the construction of their building, and defendants in that suit, plaintiffs herein, appealed devolutively to this court. On December 9, 1949, the judgment of the district court was reversed, and plaintiff's suit was dismissed. See Holloway v. Ransome et al., No. 38,726 on the docket of this court, 216 La. 317, 43 So.2d 673.

Further, according to the allegations of plaintiffs' petition, it was on the petition of Holloway and other property owners in the Kostmayer Subdivision that the Police Jury of the Parish of Jefferson on May 14, 1947, adopted the ordinance creating Residential District No. 1, which is here under attack. This ordinance was adopted while the injunction suit instituted by Holloway was pending in the lower court, and plaintiffs herein further allege that they would have completed the construction of the building which they intended to use as a commercial establishment on or about May 12, 1947, or prior to the adoption and the effective date of the ordinance, had they not been enjoined from continuing with its construction because of the suit instituted by Holloway.

The ordinance creating Residential District No. 1 of the Parish of Jefferson provides in Section 3: 'That when the creation of the said Residential District shall have been approved by the resident property taxpayers in said district at an election held for that purpose, by majority in number and amount of property assessment, that the creation of said Residential District shall become final and effective, and thereafter the establishment of places of business in the said Residential District shall be and the same are [is] hereby prohibited.' (Italics ours.)

Since this section of the ordinance prohibits the establishment of places of business in the residential district only after the effective date of the ordinance itself, the prohibition...