
    NO. 8408
    COURT OF APPEAL PARISH OF ORLEANS
    OSCAP M. GWIN versus CITY OF NEW ORLEANS ET AL.
    
   Dinkelspiel; J

Plaintiff avers that on July 14th, 1931, the City of Sew Orleans through the Building Department, City Engineer's Office of said City, issued to the Pokorny Realty Company, of this city., owners of the building Ho. 407 St. Charles Street, in the square boundéd by Perdido, Poydras and Carondelet Streets, inxihs a permit to heve done and to do certain re-y.irs to the said building, ft a cost of $2350, which work consisted of repairs to decayed parts of said building wnere necessery, including support to píete glass and floors of show window. Alleging further.that the said Pokorny Realty Comer pany had previously contracted with your petition^to do the er said repair work, end that petitioner or e,nd on behalf, of the said Pokorny Realty Company applied for, and obtained, a permit to do the said work on the aforesaid premises, paid $2,50 fee to the City Engineer's Office for said permit to make repairs to said building and to show window on sidewalk, as aforesaid, and ell of which was verbally explained to the’ City Engineer's representative, and the said permit read as follows:

"This is to certify that Pokorny Realty Co., has complied with all the provisions of Ordinance No. 6713, adopted August 3, 1910. and permission is hereby granted to Pokorny Realty Co., to build at- s cost of $1250» "Repairs to Building", Petitioner further alleges that a few days thereafter .his employees began hauling material and also began to do the work under his contract, when .a representative of the City Engineer's office notified petitioner verbally that he would not i>é able to do any work on the show dindow. -Further alleges that on August 2nd, 1931, whilst-engaged in doing oert&ln work in the build, ing in the inside, his foreman and two oarpenters were arrested and sent to the First Precinct Polioe Station’and were prevented • from doing eny work, and that petitioner's employee* were refused permission to enter into said building for the purpose of geidetnxg. getting the permit issued, which wes k*pt on the building, 'Petitioner evers th?t notwithstanding the issuance of said permit the city of Mew Orlesns end the City Engineer's Office persisted in refusing to permit petitioner to do sny work on said premises or to enter s»me for said purpose and threatened that an affidavit would he me.de against petitioner if he failed to oomply with the order. Petitioner further alleges that the offioers end agents of the oity of Mew Orleans in violation of lew and of said permit c.re acting arbitrarily, oppressive, unfair, end unconstitutional, depriving petitioner’of'his only means of earning livelihood, end = Iso in vi&lation of the Constitution of tlie United States, end finally complaining that the aota of the oity aforesaid, ere unfair, unjust, inequitable and arbitrary end are done for the purpose of harassing petitioner in the pursuit of a lawful business end occupation, and that petitioner is a duly licensed building contractor, end that the aforesaid acts have damaged p-tit loner end xxs willoontinue to damage him unless the oity of Mew Orleans, its events and officers are prohibited from interfering with petitioner, and further have oa-used and ere causing petitioner ireepereble injury end damages, Invading petitioner'e personal and nrcperty ri~hts, for which compensation there is no sdequate/KBtsdty at lew since neither the Police Authorities nor the city flould he made to reap-nd in damages; ihiiiix Sir* and that if he persists in carrying on the work as stated, he and his workmen will be arrested rnd harassed by the officers end agents of the City of Msw Orlesns; th:refore a writ cf injunction is neoessery to protect petitioner in the premises, therefore after the usual affidavit and security being furnished in a sum fixed by the Court, the prayer is the t a writ of injunction be issued enjoining and restraining, Andrew UcShene, ifeyor of the City of Mew Orleans, John Klower, City Engineer, and Guy Moloney, Inspector of the Police of this oity, from in any wise interfering with petitioner and his employees in the prossoution oí se id work, which work consists of repairs to all decayed parts of s'.id building, wherever .necessary, including supports to plate glass and floors of shew windows:. that after due trial the injunction be maintained and the city end the authorities be enjoined from proceeding in the manner referred to. The petition was sworn to, bond given ss required by lew end the order of the Court was:
"The foregoing petition*^ oonddered, let the City of Hew Orleans, John Slower, City Engineer, and Guy Molony, Inspector of Police show cause on Friday the 13th de.y of August, 1931, at 10:30 A. M., why writs of injunction should not issue ss preyed.
(Signed) Porter Parker Judge."

Annexed to the petition are the permits referred to.

The answer of the City, through the Mayor, the City Engineer and the Supreintendent of Police, to the rule to show cruse, admit that a permit was issued on the de.te referred to, covering repairs on the building, not to exceed #1350, hut defendants deny that authority was given to plaintiff to make any repairs on, to reconstruct or to build any show windows or do any act in xiix violation of the Building Code or of the law. Further averring th't contrary to the provisions of Ordinance ho. 6713, known as the "Building Code", the said nlaintiff and his employees attempted to obstruct the public streets and sidewalks by building thereon certain show esses for a distance of sixteen inches beyond the property line and that said acts were in violation of the se id ordinance, contrary to law, and constituted an obstruction to the street and a public nuisance. And averring further that on the date in question plaintiff end his employees endeavored to violate the ordianoes end laws aforesaid by obstructing the public property, end that a representative of the City Architect's office ordered ssid work.discontinued in so far ;s it constituted an encroachment on the public streets; ihxkxixxsxHstrtolisdxxaxsaKzraashmxiitxiiHxkhsxs that plaintiff's employees pritend ■ d +ÉH; t'Tléj* Sí'óüilr g® ÍSsiás ani work on ctVr p-rts of the building, ’out :n ris-llty corittfivfe'4 Í8 wc'fk §ft tbs show windows in :;ue3tion b'hini the bsrflc* á> wti-iei? »?~& ;5üí ífi íro’ñ-f 6'f the pl'-ce; th"t ther-upon plaintiff •- Hi bis aaípieyses tí re dtiiy *rrés'f"i in Tccirdence with lrv;, :hd- sri 8.1 fids tit in- á-e in the i ir~t Redsfder' a Court figf inst plaintiff un-i.-r crdírrñc* tío. ©7Í3' s-fórea: i4-,- rf'hibís Oiuse is itill pending; ín th': íirot R--cori:r's Ccti-is't.

Arid assuming the position of ;lf:.ntifi in recoweníion, -•ver th • t ^etitiori-r h-s t hr ■-trli-si to sb-truct slid Snore oh upon th; cubilo etfcrl?;) >»hioh sot const-itutss- s. nuis-vnes, th*t defend-ncs -.r: entitl-i tó • 15 injunction prchioiting snd restrain-in'?; p'l- i-ntiff from further --ction. in the premises; tli--t the dsn'•jr=- o used- to the -lei-no nt = ar- irreparable, s,ni di.ends.nts heve na dí ...i:-te remedy -■£ l-r\í« They pr-y th:t plaintafi ' s suit be divai; sea, hv_- i____- nd rej oteá <-# hi.3 cost end that there be jud.uK nt in reccnre-nticn in f-ver of defendants against ple.intif-' enjoining *nd r-str-ining plaintiff from performing sny .irk on the -•■ho-.v -indo?:* "nd free, a.batruotinc "nd enoro'-ebing the audio stre--tí -'nd sidewalks, end for *11 giner-l relief.

&sSxxSiJxxmx»*ai An --r.er.del petit1 .n filed by Csc'-r Ü. 3-..-in, i-i'terates : 11 the "ferment? cc-r.ti ined in the criginel petion, nd ol-iming furth.-r th-t the crdin-nce in gueeticn does net 7 ; ply *nd h-s never been oen.-truei to apply to ra.:. ire but ordinance only t: n structure;,ar.l the pr-.y-r -i: ah t the/xa?x±xs be declared unoon-titution7!, null, void *n-d of no effect, '-ni aleo . _ u-ol red dioorimina-toxy t-ni finelly -r-ys for gen-.r 1 relief.

On the-r issued. ch= p rties .rent to triel.

rithcut ..nt=rin¿' into 'th: t ti*,ony in this a*s:, it is surf ic ;--ns to s-y this the eviieno: t a. due a d shows beyond ocncn y, th:t pi int iff, gent ov:r th- building nd iua m: dt er- ■ r,.r.'.a r¡tí uno r th- rmit ievued to do ..ark on the p-r?.-..ie *nu hr.-;--. ’nucos, -no. in th.- o;« i-se of ' work-it ■•? s --hewn tha-t the .at rkm c, ;iri r-p ir’n; -r.d pi at tin? a. . ai-Vcn-- of th.- front of the building where the -showces-e stood, they hs<I began to install stp.irwey «ni had siso taken out the rotten wood, at the bottom of ths show window when they were interrupted by the City Engineer's representative who tried to stop them end they were informed by the City Architect tbe-t they must t’.ke the window off the street sdd do it immediately, if not they were threatened with being jelled and in feet some of the men were arrested; it w^s further shown thft the show window in front of the building extended sixteen inches out, beyond the property line, that there wee no intention to move the show window out,3asiiB and to all the testimony thrt w-s offered, counsel for the City objected on ths ground th-1 the fsets involved show nothing but a legal question ss to whether or not the plaintiff .was or w~.s not violating the city ordinance. The objections were referred to the m..rits ?nd the testimony throughout this record ehows what w-s stated et the beginning.

The evidence introduced by ths City of hew Orleans does not in any wey materially change the issue in this cese, and doss not satisfy us that this was vrork done otherwise then the permit of the oity engineer's office permitted to b® done,

In the case of the State vs. Moritz Schuchardt, to be found in the 42nd s- Ann. at p. 49, it wee held: (the ordinance in question being identical with ths one referred to in this case) the court goes on to sey at p. 51:

"But the question presented for disoussion is, whether the power conferred by th® letter pirt of the perear«oh includes the authority to forbid necessary repairs to such buildings with the .seme kind of materis'ls used in the original construction?

If repairs and reconstruction ;:s synonymous terms, the power would undoubtedly be included.

But a very wide differ.noe exists between the meaning of the two terms; and besides, the ordinance does not only forbid the reps.ire of the. building, but even of s portion of the same, In the legislative enactment no reference -is me.de to repairs, and the power th-.-rsin conferred is in terms restricted to the prohibition of the reconstruction of e former wooden building with the same or similar materials. The reconstruction of a building presupposes ? previous destruction of demolition of such building, -»nd in such .? cese the operation could in’no sense be deemed or ecid to be a repairing of'suoh building, for the repairing of & building must, in the very neture of things, presuppose the contemporaneous existence of the building.

Hence It follows thet the sole object contemplated by the l»w maker wss to 'uthcrize the City Council to prohibit the reconstruction in wood, within the limits to be by it prescribed, of buildings originally built of wood, and existing as such ;-t the date of the ordinance, but which might subsequently be destroyed by fire or otherwise, or which might thereafter be demolished by the owners. But ecting under that legislative mandate, which avowedly was its only authority in the premises, the council went a great step further end it proposed to forbid the repairing of the roofs of such-buildings, except by using in such repairs non-combustib'le materials. Henoe asme the pre- . s“nt prosecution of this defendant for having replaced on the roof of his building old shingles by new ones. Evidently the de.nger from fire -,v°s not increased by that operation, end therefore it csn not be "rgus'd that he aoted in violation of the spirit or the letter of the statute, from which the city could derive ' its. sole power in the premises,"

And at page 53 the Court goes on:

"flow, the power in a municipal corporation to oontrol the owners cf property within its limits in using or building their property in e- manner different from their inolinetioni desire or convenience, can hot be ranked emong the implied and incidental powers which such corporations mey exefoise in the bbsenoe of legislative express/ábc®áaS2áaatodxw mandates, it is a useful power, presumably necessary to provide for the greatest good of the greatest number, but it is, at the same time, a power in derogation of common right, end unless it be expressly conferred, it will never be presumed to exist. Succession of Irwin, 33 An. 68, and authorities therein cited.
Except as to incidental power, end which need not be, though they usually ere, mentioned in the oharter, the oh»rter itself, is the measure of the authority to be exercised, and the general disposition of the courts in this country has been to •confine municipalities within the limits that a strict construction of the grants of powers in their charters will assign to them, thus applying substantially the same rule that is applied to charters of private corporations.

The Court finally held that the ordinance in question was null and void, and was ultra vires.

In the case of Crowley vs. West, 52 An. p. 534, in case of discrimination and violation of a, city ordinance, and the effect thereof, the court says:

"We find nothing in the record which would justify us ' in answering this question in the affirmative. Ordinances of municipal corporations, purporting to have been adopted, in the exercise of implied, or general authority, must be "lawful," "reasonable.," "impartial", "fair", "general," "oonsistent with publlo policy", and "not in contravention of oommon righti" Dillon on Mun. Corporations (4th Ed.)."
The Court goes on to say that"the business to be effected is a legitimate business, and there is not a syllable of' testimony in the reoord before us going to show it is conducted otherwise than in a proper manner,"

authorities are And the/authorities here quoted are in consonance with authorities the/authorities quoted in plaintiff's brief, State vs. Mahner, 43 Ann. 496, State vs. Gantz 124 La. 535, and New Orleans Baseball Association vs. the City of New Orleans, 118 La. 235. All of these authorities hold that where an ordinance is discriminating 6x vdiioh permits s. public' off ioial to discriminate it is unconstitutional, null and void.

The permit granted by the Cifcfcy Engineer's offioe in this case p-rmitted the repairs in question, and we can see no ^iol^-ticn of any ordinance introduced by the defendant, and there is no l-w which permits the city to °n?ct ordinances denying to one, the right to do certain things, whilst giving, to ethers th~ right to do the s^ms things.

F„r the r<'sons assigned, it is ordered, adjudged, srd decreed, th-t the judgment of th? Court equo be and the s-'.-ms ie hereoy affirmed, costs of both Courts to be paid by the defendant.

-Judgment affirmed-  