State v. Schuchardt

• Decision Date: 01 January 1890
• Docket Number: 10,466
• Citation: 7 So. 67,42 La.Ann. 49
• Court: Louisiana Supreme Court
• Parties: THE STATE OF LOUISIANA v. MORITZ SCHUCHARDT

7 So. 67

42 La.Ann. 49

THE STATE OF LOUISIANA v. MORITZ SCHUCHARDT

No. 10,466

Supreme Court of Louisiana

January 1, 1890

APPEAL from the Second Recorder's Court, Parish of Orleans Dreux, J.

Carleton Hunt, City Attorney, and T. McC. Hyman, Assistant City Attorney, for Plaintiff and Appellee.

Sambola & Ducros, for Defendant and Appellant.

OPINION

POCHE, J.

Defendant appeals from a sentence to a fine by a recorder's court for the violation of a city ordinance which was enacted in 1888, for the purpose of establishing fire limits for the City of New Orleans.

The section of the ordinance involved in the case reads as follows: "That it shall not be lawful, and all persons are forbidden, to increase or add to the dimensions of any building already erected, under the pretence of repairing, or cause the same to be done, within the limits described in Sections 1, 2 and 4 of this ordinance, or to repair the roof of any such building, or cause the same to be done, except by using in such repairs non-combustible materials."

The charge against the defendant was that, in July, 1889, he caused the roof of a house which he owned within the fire limits to be repaired with shingles. The facts alleged in the charge were substantiated by the evidence, which showed at the same time that from the date of its original construction the house, which was a frame building, had always been roofed with shingles. The point made in defence is, that the section of the ordinance herein sought to be enforced is ultra vires for want of legislative sanction or authority in the City Council to enact the same.

he source of authority invoked by the City Attorney is the eighth paragraph of the eighth section of the City Charter known as Act No. 20 of 1882, which provides:

"The Council shall also have power * * * to determine within what limit wooden buildings shall not be erected and to prevent the reconstruction in wood of old buildings within such limits."

It is very clear, and it is conceded on both sides, that the object of this legislation is to do away, as much as possible, with wooden buildings in that portion of the city described and known as fire limits, with the view of diminishing the danger and the occurrence of large and destructive conflagrations.

One portion of the paragraph is intended to prohibit the construction, in the future, of wooden buildings within certain prescribed limits; and the law maker, having no intention to delegate the power of removing or demolishing wooden buildings in existence previous to the adoption of such an ordinance, contemplated, by the means of the latter portion of the paragraph, to empower the City

Council to forbid the reconstruction of wooden buildings within the limits to be designated by the Council.

But the question presented for discussion is, whether the power conferred by the latter part of the paragraph includes the authority to forbid necessary repairs to such buildings with the same kind of materials used in the original construction?

If repairs and reconstruction were synonymous terms, the power would undoubtedly be included.

But a very wide difference exists between the...