State ex rel. Dickason v. Harris

• Decision Date: 25 May 1925
• Docket Number: 26780
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. DICKASON v. HARRIS, Building Inspector

105 So. 33

158 La. 974

STATE ex rel. DICKASON v. HARRIS, Building Inspector

No. 26780

Supreme Court of Louisiana

May 25, 1925

Rehearing Denied June 22, 1925

Appeal from First Judicial District Court, Parish of Caddo; E. P Mills, Judge.

Mandamus by the State, on the relation of Mrs. Blanche Dickason against J. T. Harris, as Building Inspector of the City of Shreveport. From an adverse judgment, relator appeals.

Judgment ordered annulled and set aside, and judgment ordered for relator.

Bullock & Warren, of Ruston, for appellant.

B. F. Roberts, of Shreveport, for appellee.

OVERTON, J. O'NIELL, C. J.

OPINION

OVERTON, J.

Relator instituted this suit to compel the building inspector of the city of Shreveport to issue her a permit for the erection of a filling station on her property, located in said city, at the corner of Sanford and St. Vincent's avenues. The building inspector, whose duty it is, under the law, to issue permits for the erection of buildings, when their erection will not be in violation of the rules and regulations prescribed by law or ordinance, refused to issue relator the permit, because to erect a filling station where relator wished to erect one would be in violation of Ordinances No. 7 of 1922 and No. 235 of 1923, adopted by the council of the city of Shreveport. Relator pleads that said ordinances are illegal, unconstitutional, and of no effect.

Ordinance No. 7 of 1922, in so far as pertinent, reads as follows:

"Section 1. Be it ordained by the city council of the city of Shreveport, in legal and regular session convened, that it shall be unlawful for any person, firm, or corporation to erect or construct any business buildings within the resident districts of the city of Shreveport, except as hereinafter provided.

"Sec. 2. Be it further ordained, etc., that no permit for the erection of any business building within the resident districts of the city of Shreveport, shall be issued, except as hereinafter provided.

"Sec. 3. Be it further ordained, etc., that the term resident district as used in this ordinance shall be taken and held to mean that portion of the city where any block of any street is occupied exclusively for resident purposes.

"Sec. 4. Be it further ordained, etc., that in case any person desires to erect any building within a resident district of the city of Shreveport, that he shall present to the building inspector a petition signed by not less than fifty-five per cent. of the property owners actually residing on the street where the building is sought to be erected."

The remaining section of the ordinance merely provides the penalty for violating the provisions of the ordinance.

The pertinent part of Ordinance No. 235 of 1923 reads as follows:

"Section 1. Be it ordained by the city council of the city of Shreveport, in special session convened, that pending the passage of a zoning ordinance by the city council of the city of Shreveport that no business building of any nature whatsoever shall be erected in any recognized residential district for the purpose of barter or trade, or the conducting of any business of any nature or description.

"Sec. 2. Be it further ordained, etc., that a copy of this ordinance be filed with the building inspector of the city of Shreveport, and that he be authorized and instructed to refuse to issue a permit for any such building pending the passage of a zoning ordinance."

The remaining sections of the ordinance relate merely to the penalty.

Section 29 of article 14 of the Constitution of 1921 provides that --

"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."

The ordinances in question were passed apparently under the foregoing section of the Constitution.

It is urged that Ordinance No. 235 of 1923, the last one passed, is vague and illegal, because it does not define with reasonable certainty the district or districts in which buildings for business purposes shall not be erected, but describes that territory merely as "any recognized residential district." We think that the position is well taken. What may be considered by one as being a recognized residential district or districts may not be so considered by another. The term has too much elasticity to be used for the purpose for which it is here used. The council might and should have defined the district or districts to be affected by metes and bounds, and not by the uncertain and elastic term used by it. It is true, as observed by counsel for the defendant, that the section of the Constitution, quoted above, uses the expression, "residential districts," in authorizing municipalities to prohibit the establishment of places of business in such districts but the use of that expression was not intended to relieve municipalities of the duty of designating the metes and bounds of the districts which ...