
    (114 So. 491)
    No. 28593.
    STATE ex rel. HUNDLEY et al. v. CITY OF ALEXANDRIA.
    July 11, 1927.
    Rehearing Denied Oct 4, 1927.
    
      (Syllabus by Editorial Staff.)
    
    On Motion to Remand.
    1. Mandamus 187(4) — Defense that city contemplated ordinance prohibiting construction of building should be presented in lower court .before judgment requiring issuance of permit.
    Defense in mandamus to compel city to issue building permit that defendant contemplated zoning ordinance prohibiting construction of kind of building intended should have been presented in lower court before judgment, and cannot be considered on appeal.
    2. Constitutional law <&wkey;110 — Passage of city ordinance after final judgment cannot affect rights acquired thereunder.
    Passage of city ordinance after final judgment, fixing rights of parties at time of its rendition, cannot avail to disturb rights acquired by virtue of such judgment.
    3. Mandamus <&wkey;!87(4) — Defense that city contemplated ordinance prohibiting construction of building cannot be first urged on appeal from judgment requiring issuance of permit (Code Prao. art. 982).
    Under Code Prac. art. 902, defenses in mandamus to compel issuance of building permit that city contemplated zoning ordinance prohibiting construction- of kind of building intended cannot be urged for first time -in Supreme Court, as proof thereof does not appear by mere examination of record.
    4. Mandamus 187(4) — Pleas that city contemplated ordinance prohibiting construction of building should be presented before submission of case on appeal from judgment requiring issuance of permit.
    Pleas in mandamus to compel city to issue building permit that defendant contemplated zoning ordinance prohibiting construction of kind of building intended by relators should have been presented before case was submitted, if permissible in Supreme Court on appeal from judgment for relators.
    
      On the Merits.
    5. Mandamus <&wkey;l5l(2)— Mqndapius to Issue building permit need not be directed against city engineer, but may be brought against city itself (Act No. 237 of 1920, § 4).
    Duty of issuing building permit being placed on municipality itself, not on any officer thereof, by Act No. 237 of 1920, § 4, mandamus proceedings to compel issuance of permit need .not be directed against city engineer, but are properly brought against city.
    6. Mandamus <&wkey;l64(2) — Plea that petition for mandamus to issue building permit discloses no cause of action because not alleging that permit is required by ordinance, held frivolous.
    Plea that petition for writ of mandamus to compel city to issue building permit discloses no cause of action, because not alleging that such permit is required by city ordinance, is frivolous, as relator’s right to proceed without permit, if none were required, would be complete defense affecting only costs incurred.
    7. Mandamus <&wkey;154(4) — Allegation of petition for mandamus to compel issuance of building permit that it was applied for and refused sufficiently alleged that it was required by ordinance.
    Allegation of petition for mandamus to compel issuance of building permit that relators applied therefor and that it was refused held sufficient allegation that it was required by ordinance, in absence of special plea denying need therefor.
    Appeal from Ninth Judicial District Court, Parish of Rapides; R. C. Culpepper, Judge.
    Mandamus by the State, on the relation of A. Y. Hundley and others, against the City of Alexandria. Judgment for relators, and defendant appeals.
    Affirmed.'
    S. L. Richey, of Alexandria, for appellant. L. P. Whittington, Jr., and K. Hundley, both of Alexandria, for appellees.
   On Motion to Remand.

PER CURIAM.

After this case had been submitted and the opinion duly written in accordance with “the conclusion of the court reached in consultation before the case is assigned for writing the opinion” (Const. 1921, art. 7, § 6, p. 37), defendant filed a motion to remand the case for the purpose of taking evidence upon a new issue then raised for the first time, to wit, that at the time relators made their application for a permit to build, the defendant had in contemplation a “zoning” ordinance covering the whole city, and particularly prohibiting the construction of the kind of building contemplated by relators (a drive-in filling station) in the neighborhood where relators intend to build. Which ordinance was adopted April 25, 1927 and promulgated April 28, 1927; that is to say, after the judgment in the court below.

(1) If the fact that defendant contemplated, an ordinance (which it might never pass) was a defense to this action (which we doubt), the place to present that issue was in the lower court, and the time to present it was before the judgment was rendered;

(2) The passage of a city ordinance after a final judgment fixing the rights of parties at the time of its rendition cannot avail to disturb the rights acquired by virtue of that judgment (City of Shreveport v. Dickason, 160 La. 563, 107 So. 427);

(3) Even if such defenses were good, they could not be urged for the first time in this court, since the proof thereof does not appear by the mere examination of the record (C. P. art. 902); and

(4) Even if such pleas were permissible in this court, they should have been presented before the case was submitted (O’Hara v. City of New Orleans, 30 La. Ann. 152).

The motion to remand is therefore denied»

On the Merits.

ST. PAUL, J.

This is a proceeding by mandamus, to 'compel the city of Alexandria to issue to relators a permit to build an oil-filling station in said city.

I.

Section 4 of Act 237 Of 1920, p. 456, reads as follows:

“That all such municipalities [i. e. having a population in excess of 500] shall be authorized to require building permits and permits for repairs, which permits shall be granted according to uniform rules, and shall never be refused when the application setting forth the character of the building to be constructed, or the nature of the repairs, conforms to the requirements of the ordinances of the municipality passed in pursuance of this .act; provided that all such applications shall be passed upon by the governing body of the municipality, or the committee designated by it, within ten days after the filing of the same.”

From which it will be observed that the duty of issuing such permits, when applied for, is placed upon the nmnievpality itself, and not upon any officer thereof.

And this disposes of the exception herein filed, that these mandamus proceedings should have been directed against the city engineer.

II.

The plea that the petition discloses no cause of action because it fails to allege, tot verbis, that such permit to build is required by any ordinance of said city, is frivolous. If no such permit be required, then relators are entitled to proceed without such permit, which would be an obvious and complete defense to this mandamus proceeding, but would have no other bearing herein than to affect the costs incurred.

And if such were the fact, this court would so rule. But the fact is that the defendant has an ordinance requiring such permit, and the allegation of the relators that they applied for. such permit, and that it was refused, is a sufficient allegation that such permit is required in the absence of a special plea denying the need for such permit.

III.

On the merits the only defense set up is that no application was ever made by relators for such a permit. But the evidence shows that a- permit was duly applied for and arbitrarily refused without the assignment of any reason whatsoever.

We qre of opinion that the relators are entitled to a permit to build, provided their building be erected in conformity with the building regulations established by defendant’s ordinances.

Decree.

The judgment appealed from is therefore affirmed.  