State ex rel. Giangrosso v. City of New Orleans

• Decision Date: 30 November 1925
• Docket Number: 25666
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. GIANGROSSO v. CITY OF NEW ORLEANS

106 So. 549

159 La. 1016

STATE ex rel. GIANGROSSO v. CITY OF NEW ORLEANS

No. 25666

Supreme Court of Louisiana

November 30, 1925

Appeal from Civil District Court, Parish of Orleans; E. K. Skinner Judge.

Proceeding by mandamus by the State of Louisiana, on the relation of Paul Giangrosso, against the City of New Orleans. The alternative writ was made peremptory, and respondent appeals.

Judgment annulled and reversed, and judgment entered for respondent.

T Semmes Walmsley, City Atty., and Francis P. Burns, Asst. City Atty., both of New Orleans, for appellant.

Prentice E. Edrington, Jr., of New Orleans, for appellee.

OPINION

LAND, J.

Relator is the owner of a certain piece or parcel of ground at the corner of Adams avenue and Catina street, in square 54 in the city of New Orleans, and, desiring to erect and to operate on this property a drive-in filling station and soft drink establishment, applied to the proper city officials for a permit for that purpose.

The permit was refused, because it was contended by said officials that its issuance was prohibited by City Ordinance No. 6856, Commission Council Series, adopted May 23, 1922.

The present proceeding by mandamus was then instituted by relator in the civil district court for the parish of Orleans to compel the issuance of the permit, and said ordinance, as well as Act 27 of 1918, upon which it is based, were attacked as unconstitutional, null, and void.

The alternative writ of mandamus issued herein was made peremptory by the lower court, and the city of New Orleans has appealed.

Relator alleges that said act and ordinance are in contravention of articles 2 and 31 of the Constitution of 1913, and of article 1, § 10, of the Constitution of the United States, and of the Fourteenth Amendment, and that said ordinance is unreasonable, discriminatory, and oppressive, and is based entirely on aesthetic considerations, and not upon any legal grounds whatever. These contentions of relator are predicated upon the authority of the cases of Calvo v. New Orleans, 136 La. 480, 67 So. 338, and Blaise v. New Orleans, 142 La. 73, 76 So. 244.

Those decisions, however, were overruled in State ex rel. Civello v. City of New Orleans, 154 La. 271, 97 So. 440.

In the latter case the court had under consideration Ordinance No. 6789, Commission Council Series, and, as the provisions of Ordinance No. 6856, now before us, are similar to those of Ordinance No. 6789, the Civello Case is necessarily decisive of the issues here presented.

Ordinance No. 6856, C. C. S., provides.

"That from and after the passage of this ordinance, it shall be unlawful for any person, firm or corporation to erect or operate any garage, building or place where automobiles, trucks, or gasoline-propelled vehicles, or gasoline and automobile accessories or supplies are stored, sold, parked, cleaned, repaired or manufactured in or (on) any square or block between Homedale avenue and Adams avenue, bounded on any of its sides by Canal boulevard, and between Homedale avenue and Adams avenue, bounded on any of its sides by West End boulevard."

Section 5 of said ordinance reads as follows:

"That from and after the...