Boland v. Compagno

97 So. 661, 154 La. 469, 1923 La. LEXIS 1957

• Court: Supreme Court of Louisiana
• Decided: July 11, 1923
• Docket: No. 25540
• Status: Published

Opinions

O’NIELL, C. J.

This is one of the cases in which a so-called zoning ordinance of the city of New Orleans is contested. The case is referred to 'in the opinion which we handed down today in State ex rel. Civello v. City of New Orleans (No. 25566) ante, p. 271, 97 South. 440.

The plaintiffs in this case own their residences, on Carrollton avenue, in the neighborhood of Maple street. The defendant Compagno owns property at the corner of Carrollton avenue and Maple street, where he has undertaken to establish and conduct a fruit and vegetable stand and an oyster counter. The establishment of any business (except a drug store, boarding house, apartment house, hotel, or bank) on Carrollton avenue between St. Charles avenue and Colapissa street, where Campagno’s property is, is forbidden by Ordinance No. 5645, adopted January 13, 1920. As originally adopted, the ordinance excepted from the prohibition drug stores, boarding houses, apartment houses, and hotels, and by Ordinance No. 5867, adopted April 7, 1920, it was amended so as to except also banks.

Defendant contends that the ordinance is invalid for all of the reasons urged against the ordinance contested in the ease of State ex rel. Civello v. City of New Orleans (No. 25-566) supra. And he contends that the discrimination in favor of drug stores, boarding houses, apartment houses, hotels, and banks is an arbitrary discrimination against other business establishments, and therefore deprives the proprietors of such other establishments of the equal protection of the laws.

The civil district court adjudged the ordinance in this, case invalid, and refused to issue an injunction. The plaintiffs have appealed, and the city attorney has taken part in the defense of the city’s authority as amicus curiae.

[1] Eor the reasons given in our opinion in Civello’s Case, we maintain that the ordinance is a valid exercise of the police power. The argument that the exception made in favor of the proprietors of drug stores, boarding houses, apartment houses, hotels, and banks is an arbitrary discrimination in their favor and against the proprietors of other business establishments is not well founded. The exceptions may very well rest upon the favored establishments being not so objectionable as other business establishments, or may rest upon the necessity of having a drug store, boarding house, apartment house, hotel, and a branch bank in the neighborhood.

The judgment appealed from is annulled, and it is now ordered, adjudged, and decreed that the defendant Charles Compagno shall be, and he is hereby, enjoined and restrained from conducting a fruit or vegetable or oyster shop, or any other business forbidden by Ordinance No. 5645, as amended .by Ordinance No. 5867, at No. 800 Carrollton avenue, at the intersection of Maple street. The defendant is to pay the costs of this suit.

ROGERS, J., takes no part.