State ex rel. Civello v. City of New Orleans

• Decision Date: 11 July 1923
• Docket Number: 25566
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. CIVELLO v. CITY OF NEW ORLEANS et al

97 So. 440

154 La. 271

STATE ex rel. CIVELLO v. CITY OF NEW ORLEANS et al

No. 25566

Supreme Court of Louisiana

July 11, 1923

Appeal from Civil District Court, Parish of Orleans; Wynne G Rogers, Judge.

Suit by the State, on the relation of Joseph Civello, against the City of New Orleans and others. From a judgment for the relator, defendants appeal. Judgment annulled, restraining order revoked, and suit dismissed.

Ivy G Kittredge, City Atty., and Rene A. Viosca, Asst. City Atty. both of New Orleans, for appellants.

U Marinoni, Jr., of New Orleans, for appellee.

McCloskey & Benedict, of New Orleans, amici curiae.

O'NIELL, C. J. ROGERS, J., recused.

OPINION

O'NIELL, C. J.

The main question in this case is whether a so- called zoning ordinance of the city of New Orleans, forbidding business establishments in a designated residence district, is a valid exercise of the police power. There are six such suits, contesting the validity of several zoning ordinances, and the constitutionality of the statute authorizing them. In this case, and in the case entitled State ex rel. Dubos et al. v. City of New Orleans (No. 25592) 154 La. 287, 97 So. 445, ^[1] the relators are claiming the right to establish and conduct groceries -- specifically, "Piggly-Wiggly" stores -- in residence districts in which, by municipal ordinances, the establishment of the business is forbidden. In two other cases, Liberty Oil Co. v. City of New Orleans (No. 25676) 154 La. 288, 97 So. 446, ^[2] and State ex rel. Traverse v. City of New Orleans (No. 24706) 154 La. 289, 97 So. 446, ^[3] the relators are claiming the right to establish and conduct drive-in filling stations for the accommodation of automobiles, at opposite corners of the intersection of Esplanade avenue and Broad street, where the establishment of the business is forbidden by another ordinance. In another case, J. K. Boland et al. v. Charles Compagno (No. 25540) 154 La. 469, 97 So. 661, ^[4] the plaintiffs are trying to prevent the defendant's conducting a vegetable and fruit stand, and an oyster counter, in a residence district, where the establishment of such business is forbidden by another ordinance. And in the sixth case, State ex rel. Hayes v. City of New Orleans (No. 25695) 154 La. 289, 97 So. 446, ^[5] the relator is claiming the right to establish an ice factory, where the business is specifically forbidden by another ordinance.

Because the six cases presented substantially the same issue, they were set down for argument in the same week and were argued and submitted as one case. In that way, each contestant of the city's authority has had the benefit of every other contestant's pleadings, arguments, and contentions, and the reasons which will lead us to a conclusion in this case will thus dispose of the main issue in the five other cases.

The civil district court gave judgment in favor of relator, commanding the municipal authorities to issue a permit to him to construct a building to be used as a grocery store on his lot at the corner of Baronne and General Taylor streets, or to remodel the building already there, and make it a grocery store. The city has appealed.

One issue in this case is not in the other cases mentioned. The ordinance that purported to forbid the establishment of the grocery store when relator applied for the permit had been adopted before the city was especially authorized to adopt such an ordinance. The authority was given specifically, afterwards, by Act 27 of 1918, p. 35, viz.:

"Be it enacted by the General Assembly of the state of Louisiana that the municipal authorities of cities of more than 50,000 inhabitants shall have authority by ordinance to define and regulate the kind, style and manner of construction of buildings and other edifices which may be erected on certain designated streets and thoroughfares and to permit or prohibit the establishment and operation of businesses and trades within designated limits."

Before the enactment of the statute of 1918, the municipal council of the city of New Orleans depended upon the provisions of the city's charter (Act 159 of 1912, p. 253), particularly upon the provisions of section 1, paragraph (e), and section 6, paragraph 2 (c), for authority to forbid business establishments in designated residence districts, and this court had decided, in Calvo v. City of New Orleans, 136 La. 480, 67 So. 338 (in January, 1915), and again in State ex rel. Blaise v. City of New Orleans, 142 La. 73, 76 So. 244 (in June, 1917), that the city's charter did not give the municipal council authority to enact such an ordinance.

It was therefore contrary to the ruling in the Calvo Case and in the Blaise Case, that the municipal authorities refused to issue a permit to the relator in this case to remodel his building, or to construct another building on his lot, to be used as a grocery store. On the next day after this mandamus suit was filed, the municipality adopted another ordinance on the subject, under authority of the statute which had been enacted subsequent to the ruling in Calvo's Case and in Blaise's Case. The decision in the latter case was rendered on the 30th of June, 1917, and from the circumstance that Act 27 of 1918 was enacted at the next session of the Legislature, which convened only a few months later, we assume that the statute was suggested by the court's ruling in Blaise's Case.

The ordinance that was in effect when relator applied for a permit, and until this mandamus suit was filed, was Ordinance No. 1599, Commission Council Series, adopted on July 7, 1914, forbidding the establishment of any grocery, barroom, private market or meat market, oyster shop, fruit shop, livery stable, nickel show, storeroom, warehouse, barber shop, blacksmith shop, or foundry on Dryades street, between Amelia street and Napoleon avenue, or on Peniston street, between St. Charles avenue and Magnolia street, or on General Taylor street, between St. Charles avenue and Magnolia street. The ordinance concluded with a statement that its object and purpose was to confine the use or occupancy of buildings on the streets mentioned to residences only. The grocery store which relator purposes to establish on General Taylor street, being at the corner of Baronne street, is between St. Charles avenue and Magnolia street.

The ordinance that was enacted on the day after this suit was filed is Ordinance No. 6789, C. C. S., forbidding the establishment or carrying on of any business, trade, or manufactory whatsoever, in or on any square or block between St. Charles avenue and broad street, and bounded on any of its sides by General Taylor street. Relator's lot is within that area.

The first section of the ordinance forbids the establishment or carrying on, specifically, of any garage, or building, or place where automobile trucks or other gasoline-propelled vehicles, or automobile accessories or supplies, are stored, sold, parked, cleaned, repaired, or manufactured. The second section forbids, specifically, any theater, nickelodeon, motion picture show, or other place of amusement. The third section forbids, specifically, any blacksmith shop, factory, or manufacturing plant. The fourth section forbids, specifically, any oyster shop, or private market, or any stable; and the fifth section, in general terms, forbids "any other sort of business, trade or manufactory whatsoever."

Relator contends that the original Ordinance No. 1599 was without effect after the rulings in the Calvo Case and the Blaise Case, and that the Ordinance No. 6789 is unconstitutional and invalid, and that, even if it should be declared valid, it should not be given a retroactive effect, so as to govern this case.

Since the enactment of the statute of 1918, giving the city of New Orleans express authority to adopt such ordinances as are now contested, the public policy has been expressed also in a Constitutional Convention. Section 29 of article 14 of the Constitution of 1921 declares:

"All municipalities are authorized to zone their territory, to create residential, commercial and industrial districts, and to prohibit the establishment of places of business in residential districts."

That provision in the new Constitution, of course, did not add anything to the authority of the Legislature to allow municipalities to zone their territory, to create residential, commercial, and industrial districts, and to prohibit the establishment of places of business in residential districts. It was sufficient that the Constitution did not expressly prevent the exercise of the police power in that respect. We assume, therefore, that the intent and purpose of the expression in section 29 of article 14 of the new Constitution was that the authority which was conferred upon the city of New Orleans by the Act 27 of 1918, and which was extended to all municipalities by the provision in the new Constitution, should prevail over whatever was said to the contrary in the opinion of this court in Calvo's Case and in Blaise's Case. The act of 1918 had reference only to the city of New Orleans, because New Orleans was then -- and probably it is yet -- the only city of 50,000 inhabitants in the state.

If the municipal council had not enacted the Ordinance No. 6689, but had relied upon the Ordinance No. 5599, we might, in respect for the expressions of the Legislature and of the Constitutional Convention, and in the light of recent decisions of the Supreme Court of the United States, and of several state courts of last resort, depart from the ruling made in Calvo's Case, and repeated in Blaise's Case and maintain that the Ordinance No. 5599 was within the authority granted in the city's charter, and was a valid exercise of the police power. But it is not necessary now...