Sampere v. City of New Orleans

• Decision Date: 04 June 1928
• Docket Number: 28939
• Citation: 117 So. 827,166 La. 776
• Court: Louisiana Supreme Court
• Parties: SAMPERE v. CITY OF NEW ORLEANS

117 So. 827

166 La. 776

SAMPERE v. CITY OF NEW ORLEANS

No. 28939

Supreme Court of Louisiana

June 4, 1928

Rehearing Denied July 2, 1928

Appeal from Civil District Court, Parish of Orleans; Hugh C. Cage Judge.

Action by Leon Sampere against the City of New Orleans. Judgment for plaintiff, and defendant appeals.

Judgment annulled, and suit dismissed.

Bertrand I. Cahn, City Atty. and Henry B. Curtis, Asst. City Atty. both of New Orleans, for appellant.

Wm. Winans Wall, of New Orleans, for appellee.

OPINION

O'NIELL, C. J.

The city of New Orleans has appealed from a judgment rendered by the civil district court declaring two municipal ordinances unconstitutional and enjoining the city against enforcing them. One of them is a so-called zoning ordinance, being Ordinance No. 7432, C. C. S., forbidding the construction or operation of any business establishment in any of the city squares or blocks adjoining St. Claude avenue, between Marigny street and Delery street. The ordinance provides further that, whenever any place of business within that area shall become vacant or cease to be used for the business for which it was being used when the ordinance was enacted, it shall be unlawful to re-establish or conduct any business there. The other ordinance in contest is a so-called setback ordinance, being Ordinance No. 8459, C. C. S. (amending and re-enacting Ordinance No. 6712, N. C. S.), forbidding the city engineer to issue any permit for the construction or alteration of any building on any property abutting and facing on St. Claude avenue, between Jordan avenue and the St. Bernard parish line, unless the building is set back a distance not less than 15 feet from the property line on St. Claude avenue.

The plaintiff owns a vacant lot at the corner of St. Claude avenue and Delery street, measuring 35 feet 6 inches front on the avenue and 120 feet in depth along Delery street, in the block bounded also by North Rampart street and Tricou street, and therefore within the area embraced in both the zoning ordinance, No. 7432, and the setback ordinance, No. 8459. He desires to construct on his lot a store building facing St. Claude avenue, with the front of the building only 2 feet from the property line on the avenue, and to establish and conduct a store or mercantile business there. He is forbidden by Ordinance No. 8459 to construct any kind of building within the distance of 15 feet from the property line on St. Claude avenue, and is forbidden by Ordinance No. 7432 to establish a store or place of business anywhere on his lot; hence this suit to have both ordinances adjudged unconstitutional and to enjoin the city against enforcing them.

St. Claude avenue is the principal thoroughfare, and the only paved thoroughfare, leading from the business centre of New Orleans to the city limits down town -- the St. Bernard parish line. The lower line of Delery street is on the dividing line between the city of New Orleans and the parish of St. Bernard. St. Claude avenue, between Marigny street and Delery street, is a residence neighborhood, in which, however, there were at least 12 and perhaps 18 business establishments when the zoning ordinance, No. 7432, was enacted, and in which some of the buildings were, when the setback ordinance, No. 8459, was enacted, and are yet, within 15 feet from the property line on the avenue.

The reason why the zoning ordinance, No. 7432, was declared unconstitutional was that it discriminated against the owners of vacant lots and the owners of residences, and in favor of the owners of property used for business purposes, when the ordinance was enacted. The plaintiff contended, and the civil district court held, that such a discrimination tended to create a monopoly in favor of the owners of business establishments existing when the ordinance was enacted, and deprived the owners of vacant property and the owners of residences of the equal protection of the law, in violation of the Fourteenth Amendment of the Constitution of the United States. It is not contended that the ordinance is unconstitutional or invalid in any other respect, for it is now well settled that such ordinances are within the police power of municipal corporations and are not essentially violative of any constitutional guaranty. State ex rel. Civello v. City of New Orleans, 154 La. 271, 97 So. 440, 33 A. L. R. 260; State ex rel. Dubos v. City of New Orleans, 154 La. 287, 97 So. 445; State ex rel. Liberty Oil Co. v. City of New Orleans, 154 La. 288, 97 So. 446; State ex rel. Traverse v. City of New Orleans, 154 La. 289, 97 So. 446; State ex rel. Hayes v. City of New Orleans, 154 La. 289, 97 So. 446; Boland v. Compagno, 154 La. 469, 97 So. 661; State ex rel. Giangrosso, 159 La. 1016, 106 So. 549; State ex rel. Palma v. City of New Orleans, 161 La. 1103, 109 So. 916; State ex rel. Manhein v. Harrison, City Building Inspector, 164 La. 564, 114 So. 159; Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; Zahn v. Board of Public Works, 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074.

The discrimination in favor of the owners of property on which business establishments were being conducted when the ordinance was enacted was not an arbitrary discrimination or classification. If the ordinance had abolished such establishments, it would have been a very different ordinance, in that it would have had a much harsher effect upon the proprietors of such establishments and the owners of the property so used than it had upon the owners of property not already occupied by business establishments. The owners of property occupied by business establishments and the owners of property not so occupied, in the restricted area, were not similarly situated. The ordinance, therefore, in forbidding the construction or establishment of any new place of business, and forbidding a reconstruction or re-establishment of any place of business whenever any such place should cease to be a place of business, affected all persons similarly situated; and that is all that was necessary to give to every one the equal protection of the law.

The proposition urged by the plaintiff here was presented in State ex rel. Manhein v. Harrison, City Building Inspector, 164 La. 564, 114 So. 159, and we decided that, in a zoning ordinance, the exemption of property already in use for business purposes so long as it continued to be so used was not an arbitrary discrimination against the owners of property not already in use for business purposes, in the restricted area, and therefore did not deny them the equal protection of the law, viz.:

"In our opinion this attack upon the constitutionality of the ordinance is not well founded. The exception in favor of existing buildings and the existing use of them is not unjustly discriminatory. To except these buildings and the continued use of them from the ban of the ordinance is reasonable. The council had a right, in adopting the ordinance, to place such buildings and their use in a class by themselves, and except...