State ex rel. Dema Realty Co. v. Jacoby

• Decision Date: 20 May 1929
• Docket Number: 29844
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. DEMA REALTY CO. v. JACOBY

123 So. 314

168 La. 752

STATE ex rel. DEMA REALTY CO. v. JACOBY

No. 29844

Supreme Court of Louisiana

May 20, 1929

Rehearing Denied June 17, 1929

Appeal from Civil District Court, Parish of Orleans; M. M. Boatner Judge.

Suit by the State, on the relation of the Dema Realty Company against Clara Jacoby. From a judgment making a rule for the issuance of a preliminary injunction absolute, defendant appeals.

Affirmed.

Julius H. Wiener and Sidney G. Roos, both of New Orleans, for appellant.

Deutsch & Kerrigan, of New Orleans, for appellee.

OVERTON, J. ROGERS, J., dissents.

OPINION

OVERTON, J.

The city of New Orleans passed a zoning ordinance, the effect of which, if legal, is to prohibit any business establishment from operating within the area, bounded by Carondelet, Baronne, and Robert streets, and Napoleon avenue, and within 150 feet of both sides of the streets of the area bounded, and to give to all businesses, in operation in the area at the time of the passage of the ordinance, one year in which to liquidate. The ordinance was adopted in March, 1927.

Relator is the owner of real property, in the district, located at the corner of Baronne and Bordeaux streets, and defendant is the owner of real property, also situated at one of the corners of the intersection of those streets. Defendant conducts on her property a small retail drug store. She did not liquidate her business, within the year prescribed by the ordinance, but continued to conduct it as usual, paying no regard to the ordinance. The city failed to interfere with her operations, whereupon plaintiff brought the present suit to enjoin her from operating her business at its present location. Relator alleges that the continued operation of the business there, in violation of the ordinance, defining the district, is not only a public nuisance, but is a private one, injurious and detrimental to its property rights, in that the operation of the business, at the location mentioned, depreciates the value of relator's property for residential purposes.

Defendant excepted to relator's demand on the ground that it disclosed no right or cause of action, and when this exception was overruled, she answered the demand, denying that her business was a nuisance, or injurious to property in the neighborhood, or to relator's property, but averring that, instead, it was a benefit to the same. She also pleaded the unconstitutionality and illegality of the ordinance on various grounds, which will be stated, so far as now urged, as they are reached.

The exception of no right or cause of action rests upon the ground that relator, as a property owner, owning real property, in the immediate vicinity of defendant's business, has no right to bring such a suit, but that the right to bring it belongs to the city alone; and that, should it be held that relator has such a right, still relator does not allege facts disclosing the right.

Relator alleges, as we have said, that its property, as residential property, which is the only purpose for which it may be used, is being injured by the operation of defendant's business, and alleges facts, showing the nearness of its property to defendant's business, from which we think it is fairly deducible that plaintiff is suffering a special and peculiar injury by the operation of the business, not suffered in common by the community. In these circumstances plaintiff has, and shows, a right and cause of action. There is nothing in Act 240 of 1926, relative to the construction, alteration, and use of buildings, and to zoning, that purports to take away this right. The questions, here presented, were presented and fully considered in the very recent case of State ex rel. Dema Realty Co. v. McDonald et al. (La. Sup. No. 29,609) ante, p. 172, 168 La. 172, 121 So. 613. It was there held by a majority of the court that, under the facts here shown, a cause of action was disclosed by the property owner, and that this cause of action was not affected by Act 240 of 1926. We consider this case decisive of the questions here presented.

Defendant lays considerable stress upon the action of the court in ruling out a part of the evidence, which she desired to offer on the trial of the rule as to whether the preliminary injunction prayed for should issue. She desired to offer this evidence for the purpose of showing that the ordinance is arbitrary, unreasonable, and discriminatory. The rulings, complained of, were made in connection with a motion for a continuance, which showed what defendant desired to prove by absent witnesses, and also in connection with questions propounded to witnesses on the stand, and touching the admissibility of a document offered.

We think it clear that, where authority is granted to a municipality, in general terms, as is the case here, to pass an ordinance on a given subject-matter, evidence may be offered to show that the ordinance passed is arbitrary and unreasonable. Trenton Horse R. Co. v. Trenton, 53 N.J.L. 132, 20 A. 1076, 11 L.R.A. 410; Mayor v. Dry Dock E. B. & B. R. Co., 133 N.Y. 104, 30 N.E. 563, 28 Am. St Rep. 609. Also, if the one attacking the ordinance is in possession of facts, which, when produced, will have a tendency to show that the ordinance is discriminatory, he has a right to introduce the evidence. We do not understand that the trial court has taken a different view of the law from this statement of it. The evidence, ruled out, which is too much to state in detail, was such, for instance, as evidence to show the general policy of the city, relative to zoning, especially as to the time that should be given to liquidate an existing business in a newly established zoning district, which is required to leave the district, the ruling out of an ordinance, which had not been passed, but was still pending, relative to a general zoning system, and which was offered for the purpose of showing the facts just mentioned; the ruling out of evidence to show the length...