State ex rel. Manhein v. Harrison

Citation164 La. 564,114 So. 159
Decision Date11 July 1927
Docket Number28265
CourtSupreme Court of Louisiana
PartiesSTATE ex rel. MANHEIN v. HARRISON, City Bldg. Inspector, et al

Rehearing Denied October 4, 1927.

Appeal from First Judicial District Court, Parish of Caddo; T. F Bell, Judge.

Suit for mandamus by the State, on the relation of Mrs. Anna E Manhein, against J. T. Harrision, City Building Inspector and others. From a judgment in favor of defendants, plaintiff appeals.

Affirmed.

Wise, Randolph, Rendall & Freyer, of Shreveport, for appellant.

B. F. Roberts and John T. Carpenter, both of Shreveport, for appellees.

OPINION

OVERTON, J.

This is a suit for a writ of mandamus to force the building inspector of the city of Shreveport and the city council to issue to plaintiff a building permit for the erection of a station for the sale of gasoline, oils, greases, and the like. The petition shows (concerning the truth of which there is no dispute) that the land on which it is proposed to erect the building has been used for business purposes for some years, and is now being so used, greenhouses being at present located thereon; that there are other business buildings within less than a block of plaintiff's property; and that plaintiff has presented to the building inspector the plans and specifications for the erection of the building, but that the council and the building inspector refuse to issue the permit.

Defendants filed an answer in which they averred that the permit could not be granted, because to grant it would be to violate Ordinances Nos. 7 of 1922, 235 of 1923, and 110 of 1924, which are zoning ordinances, and prohibit the construction of business buildings in the section of the city in which plaintiffs desire to erect the filling station. Thereafter, at different times, defendants filed amended answers setting up as reasons for not issuing the permit, the provisions of Ordinance 168 of 1924, amending Ordinance 110 of 1924, and the provisions of Ordinances 100 and 115 of 1925, which, it is also averred, prohibit the erection of business buildings in said section.

Plaintiff attacks the constitutionality of each of these ordinances. Ordinance No. 7 of 1922 and Ordinance No. 235 of 1923 were declared invalid by this court in State ex rel. Dickason v. Harris, Building Inspector, 158 La. 974, 105 So. 33, and Ordinance No. 110 of 1924 was held to be unconstitutional in State ex rel. Dickson v. Harrison, Building Inspector, 161 La. 218, 108 So. 421. Since Ordinance 168 of 1924 is an attempt to amend a section of Ordinance 110 of 1924, which was declared unconstitutional, the amendatory ordinance, which, it may be said, is not enforceable alone, is itself null. 28 Cyc. 382; McQuillin on Municipal Corporations, p. 316, § 196. There remains, therefore, to be considered only Ordinances 100 and 115 of 1925. The former, though its number would not so indicate, is the last expression of the council on the subject of zoning, since it was adopted after Ordinance 115, though introduced before the latter was. The ordinance, that is, Ordinance 100 of 1925, is a comprehensive one. It divides the city, or virtually all of it, into six zoning districts, terming each district a "use district," as, for instance, "residence use district," and "industrial use district." Ordinance 115, which includes within its scope the land on which plaintiff desires to build, and which was passed as an emergency ordinance, if not superseded by Ordinance 100, does not affect the latter, hence it will be unnecessary to consider it further, unless Ordinance 100 be found to be unconstitutional.

Section 2 of Ordinance 100 prohibits the erection, alteration, or use of any building or premises for any purpose other than a purpose permitted in the district in which the building is located. Section 4 of the ordinance creates "B residence use district," which embraces the land upon which plaintiff desires to construct the filling station, and when read in connection with sections 2 and 3 of the ordinance, prohibits the erection or alteration of a building for mercantile purposes, including a station for the sale of gasoline, greases, and oils, and makes the district a residential one, subject to such exceptions as the construction and operation of hotels, greenhouses, and the conducting of nurseries, and to the further exceptions appearing in the next paragraph.

The further exceptions, referred to above, are created by section 9 of the ordinance, and are as follows:

"This ordinance shall not apply to existing structures nor to the existing use of any building, but shall apply to any alteration of a building to provide for its use for a purpose, or in any manner different from the use to which it was put before alteration. * * *

"The city council may authorize in a resident district, for a period of not more than two years from the date of such a permit (referring to a permit for the construction of a building) a temporary building for commerce or industry incidental to the residential development; provided, however, that such permit shall not be renewed.

"A structure or premises may be erected or used in any location by a public service corporation or for the public utility purposes which the city council deems reasonably necessary for the public convenience and welfare.

"The city council may grant a permit for the enlargement of existing buildings or erection on the same lot or plot of ground of additional buildings for trade, business or industry located in a district unrestricted against its use, where such enlargement or expansion of such trade, business or industry will not be detrimental to or tend to alter the character of the neighborhood. * * *"

The ordinance in question, that is, Ordinance 100 of 1925, was adopted under section 29 of article 14 of the Constitution of 1921, which reads as follows:

"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."

Such a provision, whether statutory or constitutional, conveys to municipalities authority to zone their respective territories, and the exercise, in a proper manner, of the power conveyed does not deprive one of property without due process of law in violation of either the Constitution of this state (article 1, § 2) or of the United States (Fourteenth Amendment, § 1). State ex rel. Civello v. City of New Orleans, 154 La. 271, 97 So. 440, 33 A. L. R. 260; State ex rel. Giangrosso v. City of New Orleans, 159 La. 1016, 106 So. 549; State ex rel. Palma v. City of New Orleans, 161 La. 1103, 109 So. 916; State ex rel. Roberts v. City of New Orleans, 162 La. 202, 110 So. 201; Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. However, plaintiff does not question, in this case, the foregoing statement, but attacks the ordinance upon other grounds.

One of the grounds upon which the ordinance is attacked is that it is unlawfully discriminatory, being in violation of both the state and federal Constitutions, because while it prohibits the construction, alteration, or use of any building in any of the respective zones, except for the purposes sanctioned by the ordinance in such zones, yet the ordinance excepts from its operation existing structures and the existing use of any building in any zone, though it prohibits the alteration of a building therein to be used for a purpose (business purpose) different from the use to which it was put before alteration, thereby permitting those who were conducting a business at any point in any residential zone, at the time of the adoption of the ordinance, to continue conducting their business at that point in the zone, while at the same time prohibiting others who were not engaged in such business therein, at the time of the adoption of the ordinance, but who desire to erect, alter, or use a building in the zone, for the purpose of engaging in such business, from so doing.

In our opinion this attack upon the constitutionality of the ordinance is not well founded. The exception in favor of existing buildings and the existing use of them is not unjustly discriminatory. To except these buildings and the continued use of them from the ban of the ordinance is reasonable. The council had a right, in adopting the ordinance, to place such buildings and their use in a class by themselves, and except them, including the use to which they were then being put, from the prohibition of the ordinance. The council had the right to do this in order to avoid making the ordinance unnecessarily harsh and burdensome. The council, in so doing, was denying to no one the equal protection of the laws, for the ordinance, based upon a classification, which is not arbitrary, but which appears to be sound and just, applies alike to all similarly situated.

The exact point presented here does not appear to have been directly passed upon in this jurisdiction with respect to zoning, but it has been passed upon in other jurisdictions in that connection.

Thus, in Spector v. Building Inspector of Milton, 250 Mass. 63, 145 N.E. 265, it was said by the Supreme Judicial Court of Massachusetts, in connection with a zoning ordinance, that:

"There is nothing about the zoning by-law which denies to the petitioner the equal protection of the laws. The provision exempting from its prohibition of business or commercial uses existing buildings in district A, and permitting additions, alterations or enlargements, upon cause shown, are unobjectionable. A classification of this nature does not deny the equal protection of the laws. It is based upon sound distinctions. To exempt buildings already devoted to a use from a prohibition of such...

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