State ex rel. Dickson v. Harrison
| Decision Date | 01 February 1926 |
| Docket Number | 26884 |
| Citation | 108 So. 421,161 La. 218 |
| Court | Louisiana Supreme Court |
| Parties | STATE ex rel. DICKSON v. HARRISON, Building Inspector |
Rehearing Granted May 3, 1926
Appeal from First Judicial District Court, Parish of Caddo; E. P Mills, Judge.
Mandamus by the State, on the relation of C. B. Dickson, against J. T Harrison, Building Inspector. From a judgment for respondent recalling and annulling an alternative writ of mandamus, relator appeals.
Reversed and rendered.
C. B. Prothro, of Shreveport, for appellant.
B. F. Roberts, of Shreveport, for appellee.
Relator is the owner of lot No. 124, Bellair subdivision of the city of Shreveport. He applied to the building inspector of the city for a permit to erect a gasoline filling station and store building on said lot. The building inspector refused to issue the permit, and relator brought this mandamus proceeding to compel its issuance. From a judgment in favor of the respondent and against relator recalling and annulling the alternative writ of mandamus, and rejecting relator's demands at this cost, he appealed.
When relator's application for the permit was filed, there was then in force two ordinances of the city of Shreveport affecting his right thereto, viz. Ordinances Nos. 7 of 1922 and 235 of 1923. The day following the filing of relator's petition in this suit the city council of Shreveport adopted and promulgated, as an emergency measure, Ordinance No. 110 of 1924. The respondent pleads the three ordinances mentioned, and he annexes and makes them a part of his answer.
In State ex rel. Dickason v. Harris, 158 La. 974, 105 So. 33, this court decreed the nullity of Ordinances Nos. 7 of 1922 and 235 of 1923; but, prior to the handing down of that opinion, the lower court rendered judgment in this case, and based its judgment on the validity of those ordinances. It appears from the minute entry that in the oral reasons assigned for the judgment the district judge announced, as his opinion, that Ordinance No. 110 of 1924 was unconstitutional, but that Ordinances Nos. 7 of 1922 and 235 of 1923 were valid enactments, and were in force and effect. We note that the unconstitutionality of Ordinance No. 110 of 1924 is not pleaded in relator's petition or elsewhere in the record, and the court's judgment makes no reference whatever to it. Therefore, regardless of the reasons the trial judge may have given for the conclusions he reached, the judgment rendered does not pass upon the validity of that ordinance.
For the reasons stated, we are of the opinion that the district judge correctly recalled the alternative writ of mandamus, and rejected relator's demands, and, therefore, the judgment appealed from is affirmed at appellant's cost.
On Rehearing.
In handing down the opinion herein on the first hearing, we were under the impression that Ordinance No. 110 of 1924 was not attacked by any plea in the court below, and hence refused to pass upon the validity of that ordinance. We were in error in so thinking, for plaintiff attacked in the lower court the legality and the constitutionality of the ordinance on various grounds. Hence we have granted a rehearing to enable us to pass on the legality and the constitutionality of that ordinance.
Some of the grounds on which the ordinance is attacked as being illegal and unconstitutional are that it is unreasonable, oppressive, and discriminatory.
It appears that section 1 of the ordinance provides for the creation of residential zones or districts. Section 2 of the ordinance defines these zones, and section 3 reads:
"That within the territory above described in section 2 herein (which) is declared to be a residential zone, there shall not be constructed any commercial or business houses or filling stations, public garage or any other business of any character unless an application shall be made therefor to the city council and the same receive the approval of the council by special ordinance amending this ordinance in each separate case."
Section 5 of the ordinance provides a penalty for erecting, without the authority of the council, a business house to be used for commercial purposes within the territory described in section 2, and further provides for the enforcement of the ordinance by injunction.
From the foregoing, it appears that the council...
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