Summerell v. Phillips

Decision Date04 May 1971
Docket NumberNo. 50781,50781
Citation247 So.2d 542,258 La. 587
PartiesLester J. SUMMERELL v. James W. PHILLIPS.
CourtLouisiana Supreme Court

Joseph F. Keogh, Parish Atty., for defendant-relator.

McCollister, Belcher, McCleary & Fazio, M. Aubrey McCleary, Jr., Baton Rouge, for intervenors-relators.

Ellison & Gary, Leon Gary, Jr., Baton Rouge, for plaintiff-respondent.

SANDERS, Justice.

In this mandamus proceeding, Lester L. Summerell seeks to compel James W. Phillips, the Building Supervisor of East Baton Rouge Parish, to issue to him a permit for the construction of a trailer park. The district court denied relief. After declaring the parish trailer park ordinance unconstitutional, the Court of Appeal granted the mandamus and ordered the issuance of a permit. 238 So.2d 786. Under the authority of Bradford v. Department of Hospitals, 255 La. 888, 233 So.2d 553 (1970), we granted certiorari as a matter of right. 256 La. 849, 239 So.2d 356.

In October, 1967, Summerell acquired a tract of land in East Baton Rouge Parish on which he intended to construct a trailer park. On May 20, 1968, he applied to the City-Parish Permit Department for a permit to build the park. Eight days later, the department denied the permit because of Parish Council Resolution No. 7626, adopted on April 24, 1968. That resolution declared a 'moratorium' on the issuance of trailer park permits until further instruction of the council, pending the completion of a study and development of a trailer park ordinance by the Planning Commission.

Thereafter, Summerell filed in the district court a petition for mandamus against the Building Supervisor. In the petition he attacked the constitutionality of the moratorium resolution. The Building Supervisor filed a declinatory exception, a peremptory exception, and an answer. Village St. George, Inc., Magnolia Heights, Inc., and St. George Civic Association, Inc., property-owner organizations, intervened to support the position of the Building Supervisor.

The declinatory exception objected to the absence of citation and the use of the summary proceeding to attack the legality of the resolution.

The peremptory exception suggested the absence of a cause or right of action, on the ground that the resolution prohibited the issuance of the permit and negated the existence of a ministerial duty essential to a mandamus proceeding.

The answer resisted the demand on several grounds: It asserted that Resolution No. 7626 prohibited the issuance of the permit, that the resolution imposed a valid moratorium pending the completion of the Planning Commission's study, that the Planning Commission had already scheduled hearings on an ordinance, and that the Building Supervisor had no authority to question the constitutionality of the resolution.

The district court overruled the exceptions. After a hearing, it declared the resolution unconstitutional and ordered the Building Supervisor to issue the trailer park permit.

The district court judgment was handed down on September 24, 1968. The following day, the City-Parish Council of East Baton Rouge Parish adopted Ordinance 2876, restricting trailer park permits to special zoning districts. On September 26, the Building Supervisor filed a motion for a new trial, based in part upon the newly enacted Ordinance. The district court granted a new trial.

Upon the new trial, the Building Inspector introduced Ordinance 2876 in evidence. Holding that the ordinance prohibited the issuance of the present permit and pointing out that its validity had not been challenged, the district court dismissed plaintiff's suit.

Plaintiff appealed. Although the constitutionality of Ordinance 2876 had not been attacked in the district court, the Court of Appeal declared the ordinance unconstitutional and issued a writ of mandamus. 1

Three substantial but interrelated questions arise from the Court of Appeal judgment: (1) Does the subsequently enacted ordinance apply to plaintiff's application for a trailer park permit? (2) May a plaintiff in a mandamus proceeding attack the constitutionality of a law that bars a public official from the performance sought? (3) Can the unconstitutionality of the ordinance, not pleaded in the trial court, be raised in the Court of Appeal?

Ordinance No. 2876 regulates trailer park permits, specifying the zoning districts in which trailer parks may be constructed. It makes no exception for pending applications. By its terms, it applies to all permits issued after its adoption.

In State ex rel. Manhein v. Harrison, 164 La. 564, 114 So. 159, this Court held:

'The ordinance, now before us, is sufficiently broad in its terms to prohibit the issuance of the permit here prayed for. The question is whether the council had a right to prohibit the issuance of permits previously applied for, though not granted, such as the permit in this case. We think that the council had such right. Every one holds his property subject to the police power. Because a person applies for a permit at a time when it might be lawfully granted does not give him a vested right to the permit. An ordinance may be validly passed after the making of such application which would prohibit the issuance of the permit.'

The institution of this mandamus suit before the ordinance's adoption does not render the ordinance inapplicable to the permit involved in the litigation. See State ex rel. Manhein v. Harrison, supra; State ex rel. Civello v. City of New Orleans, 154 La. 271, 97 So. 440, 33 A.L.R. 260.

The plaintiff relies upon City of Shreveport v. Dickason, 160 La. 563, 107 So. 427 and State ex rel. Fitzmaurice v. Clay, 208 La. 443, 23 So.2d 177. Both cases are distinguishable.

The Shreveport case presented novel circumstances. There the judgment of this Court in State ex rel. Dickason v. Harris, 158 La. 974, 105 So. 33, ordering the issuing of a building permit became final on June 22, 1925. In compliance with the judgment, the City issued the permit on July 9, 1925. One of the intervening ordinances provided that it should not be construed as cancelling any permit granted prior to its passage. In the later litigation, the City of Shreveport sought an injunction to prohibit the use of the permit. This Court denied the injunction.

In State ex rel. Fitzmaurice v. Clay, supra, the relator's application for a building permit was deferred until the final report of the Zoning Commission on a Zoning Ordinance. This Court found that, despite the lapse of four years after the filing of the application, no zoning ordinance had been adopted. It affirmed the lower court judgment ordering issuance of the permit. This Court specifically recognized, however, that a subsequent ordinance may affect pending applications for permits.

We conclude that Ordinance No. 2876 applies to plaintiff's application for the trailer park permit.

The second question is more difficult: whether or not the plaintiff in a mandamus proceeding can attack the constitutionality of a statute or ordinance that bars the performance sought by the writ.

Mandamus is a writ directing a public officer or others designated by statute to perform a duty. LSA-C.C.P. Art. 3861; Bussie v. Long, 257 La. 623, 243 So.2d 776. Normally, it issues in a summary proceeding. LSA-C.C.P. Arts. 3865, 3866. Mandamus is the most commonly used procedural vehicle for the judicial review of administrative action in Louisiana. See 43 Tul.L.Rev. 854, 855. 2

The Louisiana Code of Civil Procedure provides:

Article 3862:

'A writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice * * *'

Article 3863:

'A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law * * *'

Under the foregoing articles, only a ministerial duty qualifies for enforcement in a mandamus proceeding against public officials. These articles contain no explicit rule as to whether or not the unconstitutionality of an impeding statute can be raised by plaintiff and declared in the same proceeding.

The arguments against allowing the plaintiff to raise the unconstitutionality of a statute in a mandamus proceeding have been variously stated. It is suggested that a summary proceeding is ill-adapted to the adjudication of constitutionality. It is also postulated that the existence of an impeding statute, though unconstitutional, negates the co-existence of a ministerial duty.

We find these arguments unpersuasive. Courts must be solicitous of constitutional rights in mandamus proceedings, just as they are in other cases. Moreover, if a statute is unconstitutional and is so declared, courts should not allow it to cloud the official duty. To require that the constitutionality of a statute first be determined in a separate proceeding produces a multiplicity of suits and prolongs litigation.

A division of authority exists on this question in other jurisdictions. The majority rule is that a plaintiff in a mandamus proceeding may attack the constitutionality of a statute or ordinance excusing the respondent from performance. State ex rel. Shepard v. Mechem, 56 N.M. 762, 250 P.2d 897; Giddings v. Blacker, 93 Mich. 1, 52 N.W. 944; State ex rel. Powell v. State Bank of Moore, 90 Mont. 539, 4 P.2d 717, 80 A.L.R. 1494; State ex rel. Michaels v. Morse, 165 Ohio St. 599, 138 N.E.2d 660; Carter v. City of Bluefield, 132 W.Va. 881, 54 S.E.2d 747; People ex rel. Scott v. Kerner, 32 Ill.2d 539, 208 N.E.2d 561; 52 Am.Jur.2d, Mandamus, § 95, p. 418. 3

The prevailing view is correctly stated in 52 Am.Jur.2d, Mandamus, § 95, p. 418, as follows:

'The question of constitutionality is frequently interposed by a petitioner or relator in mandamus where he claims that a statute or ordinance which, if valid, would excuse the respondent from performing the duty or act in question is invalid. There seems to be no reason why the constitutionality of ...

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