Waters Pierce Oil Company v. Mayor And Board of Trustees of the Town of New Iberia

• Decision Date: 06 May 1895
• Docket Number: 11,778
• Citation: 47 La.Ann. 863,17 So. 343
• Court: Louisiana Supreme Court
• Parties: WATERS PIERCE OIL COMPANY v. MAYOR AND BOARD OF TRUSTEES OF THE TOWN OF NEW IBERIA

17 So. 343

47 La.Ann. 863

WATERS PIERCE OIL COMPANY v. MAYOR AND BOARD OF TRUSTEES OF THE TOWN OF NEW IBERIA

No. 11,778

Supreme Court of Louisiana

May 6, 1895

Argued April 24, 1895

APPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

Foster & Broussard and Andrew Thorpe, for Plaintiffs, Appellees.

Walter J. Burke, for Defendants, Appellants.

McENERY J. BREAUX, J. dissents.

OPINION

McENERY J.

There is in the record an affidavit of J. G Broussard, the agent and manager of the plaintiff, to the effect that the business which the plaintiff has been ordered to move is worth considerably over two thousand dollars.

The motion to dismiss is denied. State ex rel Daboval vs. Police Jury, 39 An. 759.

The town of New Iberia passed an ordinance declaring it to be "a nuisance for any person or persons to keep or store in any building or shed, or any other enclosure whatever, within the limits of the corporation, any explosives or other highly inflammable materials, dangerous to the safety of life and property, in any other quantity than that which may be necessary for the supplying of the ordinary or every-day usage, or the demands of retail selling business."

Before the enactment of this ordinance, the plaintiff company, on its own property, within the corporate limits, had erected buildings and improvements in the way of large iron tanks of such thickness as to render them fire-proof and safe when exposed to great heat. All necessary precautions had been taken to shut off escaping gas. A written notice was served on the plaintiff company to comply with the ordinance.

The company applied for and obtained a writ of injunction, restraining the execution of said ordinance, on the grounds of the illegality and unconstitutionality of the ordinance:

1. Because it makes no provision for an investigation to ascertain if petroleum oil, stored in such tanks, is or is not a nuisance, and arbitrarily declares the storing of petroleum oil in the tanks, provided by plaintiff, a nuisance.

2. That the ordinance is ultra vires in that the charter of the town does not give power to the corporation to enact such an ordinance.

3. That the ordinance makes no provision for any charge, affidavit or trial of any one charged with violating it; is in restraint of trade, and its execution will deprive plaintiff of his property, without due process of law.

There was judgment for plaintiff, perpetuating the injunction, and the defendant corporation appealed.

That the ordinance makes no provisions for an accusation and trial does not concern the plaintiff, as the company was not proceeded against in order to impose any fine, forfeiture or penalty. Nor does the charge leveled against it, that it is in restraint of trade, concern the plaintiff, if the town had the authority and power to pass the ordinance. The loss of plaintiff's business is but a necessary consequence of the unlawful act complained of.

That the ordinance of a municipality can not make that a nuisance which is, in fact, not one, is elementary. But even in cases where a particular thing is denounced by the municipality as a nuisance it is not required that the ordinance should provide for an investigation as to the fact, whether or not it is a nuisance.

The facts are disclosed on the trial, and the question of nuisance remains open until decided by the court. The courts are open to the author of the alleged nuisance, and therefore the proceeding by the town authorities to carry into effect its ordinance does not, in itself, constitute the taking of property without due course of law.

From an inspection of the ordinance it will be seen that it does not propose to take private property without compensation, and without due process of law, but only to restrain the private injurious use of property. It is within the power of a municipality to so regulate the use of property that it shall not be pernicious, and inflict an injury upon its inhabitants generally. Corpatt vs. Yonkers, 140 N.Y.; Dillon Municipal Corporation, par. 141.

The State can confer upon municipal corporations the power to establish police regulations. Cooley Const. Limitations, 148.

The act of the General Assembly, No. 16 of 1839, conferred full...