State v. Mahner

43 La. Ann. 496

• Court: Supreme Court of Louisiana
• Decided: April 15, 1891
• Docket: No. 10,730
• Status: Published

Opinions

The opinion of the court was delivered by

McEnery, J.

The defendants were prosecuted for violating or - dinanee No. 3414 of the City of New Orleans, convicted and fined.

This ordinance, and amended ordinance No. 3175, extended the limits within-which the dairies were prohibited.

The defendants ask that the ordinance be declared null and void, because it is not general in its operation, is unconstitutional and oppressive.

The objectionable feature of the ordinance is contained in the first section.

This section prescribes the limits within which dairies may be conducted by permission of the City Oouncil, and it is made unlawful to keep more than two cows without a permit from the City Oouncil. The defendants are within the prohibited limits, and keep more than two cows.

The ordinance is not general in its operation. It does not affect all citizens alike who follow the same occupation which it attempts to regulate. It is only those persons who keep more than two cows within the prohibited limits without the permission of the Oity Council who are subject to the penalties in the ordinance. The discretion vested by the ordinance in the City Oouncil is in no way regulated or controlled. There are no conditions prescribed upon which the permit may be granted. It is within the power of the-City Council to grant the privilege to some, to deny it to others.

The discretion vested in the Council is purely arbitrary. It may be exercised in the interest of a favored few. It may be controlled, by partisan considerations and race prejudices, or by personal-animosities. It lays down no rules by which its impartial execution-can be secured, or partiality and oppression prevented. Yick Wo vs. Hopkins, 118 U. S. 856; Horr & Bemis, M. P. Ordinances, paragraphs 135, 136.

It was the evident intention of the Council in amending ordinance SITS to prohibit dairies in other places than within the prescribed limits.

The amended ordinance, Section S, grants twelve months’ time to the proprietors or owners of all dairies now in existence in violation of the amended ordinance to move their dairies. But as the amendment to the ordinance only extends the limits within which dairies-are prohibited, those who have them in pursuance of the permission from the mayor are exempt from its operations.

Section 4 of ordinance 3414 is open to the objections above stated. It is as follows:

“That henceforth no new dairies keeping more than two cows shall be established within the limits above named, under the same penalties as are now in force under existing ordinances.”

This section establishes an inequality, granting to some persons, following the same occupation, privileges that are not extended to others.

The ordinances do not regulate dairies in the interest of the public-health. One dairy may be a nuisance because the City Council has refused to give the required permission for its establishment; another may be perfectly harmless and in no -way detrimental to-public health because it exists by permission of the Council. They may exist along side of each other, both unobjectionable in their-police regulations, and one a nuisuance and the other a lawful establishment.

Both the original and amended ordinance violate equal rights, among the class they are designed to affect, and are therefore necessarily void so far as they do so.

This opinion in no way conflicts with the views expressed in the-case of the State vs. Gisch, 31 An. 544. In that ease the ordinance regulated private markets in pursuance of express legislative enactment, by imposing a license upon them when they were conducted in certain localities. The ordinance affected all persons alike who were engaged in the same occupation, and was free from the objections in the ordinance under consideration. Nor does this opinion conflict with the opinion and decree in the case of Bozant vs. Cambell, 9 R. 411, in which the court was called on to deal with a municipal ordinance prohibiting the establishment of private hospitals within certain limits. The court held that, as the Council had a right to repeal the ordinance, it could do so partially and modify it so as to permit in exceptional cases the erection of private hospitals within the prohibited limits.

The instant case does not present the same features. In the exercise of its power in the interest of the public health, the court said the council of the municipality had prudently exercised it.

It is therefore adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and the suit of the City against the defendants be dismissed with costs of both courts.