State v. Dubarry , 44 La. Ann. 1117 ( 1892 )

The opinion of the court was delivered by

Watkins, J.

The defendant prosecutes this appeal from a judgment and sentence imposed upon him for violation of city ordinance No. 6600, relative to the establishment of private markets in New Orleans.

In the recorder’s court, the defendant assigned illegality and unconstitutionality of the ordinance, on the following grounds, viz.:

1. That the ordinance contravenes the fourteenth amendment to the Constitution of the United States, in that it is not general and equal in its operation, and in that it grants to a majority of the members of the city council the arbitrary power to give or refuse their consent to carry on a legitimate business in any place.

“ 2. That it violates Act 116 of 1888, and the Constitution of the State of Louisiana, in that its terms empower the council of the city of New Orleans to prohibit private markets in the populous parts of the city, and to create a monopoly.

“ 3. Thatin so far as it compels the defendant to establish his private market in a building flagged, sixteen feet high and three and one-half feet from any dwelling, it is unreasonable, oppressive and ultra vires.” Defendant’s brief, p. 2.

The sections of the ordinance requiring interpretation read as follows, to-wit:

“ Section 1. Be it resolved, That hereafter it shall not be lawfu for any one to set up or establish a private market for the sale of meats, Ash, vegetables or other comestibles, except fruit, without permission of the city council, previously applied for by a written petition.

“ Sec. 2. That the private market building occupied for such purposes must have proper flagging and ventilation, said building to be not less than ten (10) by fifteen (15) feet in superficial area, sixteen (16) feet in height, and the sides of said building not less than three (3) feet six (6 inches from any dwelling, and said building shall not be less than 2100 feet from any public market.

“ Sec. 3. That no permit or license shall be issued for any private market until evidence that all the provisions of this ordinance have been complied with shall be produced.” Plaintiff’s brief pp. 2 and 3.

We think it too clear for argument that the ordinance is illegal and void, by reason of the provision contained in the first section, which makes the establishment of private markets thereafter to depend upon the applicant obtaining “permission of the city council.”

The doctrine announced in State vs. Mahner, 43 An. 496, is strictly applicable. In that case we said:

“The objectionable feature of the ordinance” — Ordinance No. 3414 governing and controlling the limits within which dairies might be established — “is contained in the first section. This section prescribes the limits within which dairies may be conducted, by permission of the city council, and it is made unlawful to keep more than two cows without a permit from the city council * * *

“ 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 city council who are subject to the penalties of the ordinance.

“ The discretion vested by the ordinance in the city council 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.

11 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.”

The phraseology of Sec. 1 of Ordinance 6600, viz.: “without permission of the city council,” is almost identical with that of Sec. 1 of Ordinance No. 3414, viz.: “without a permit from the city council.”

Our decision in Mahner’s case was based on the opinion of the Supreme Court in Yick Wo vs. Hopkins, 118 U. S. 346, to which this case is conformable in every particular.

This objection, lying at the foundation of the < rdinance as it does, and appertaining to the condition precedent on which private markets can alone be, thereafter, established, being sustained, there is no occasion that other grounds of objection thereto should be discussed.

It is, therefore, ordered and decreed that the judgment and sentence appealed from be annulled and reversed, and it is now ordered and decreed that Sec. 1 of city ordinance No. 6600 be and the same is hereby declared illegal and void, and that the defendant be discharged from prosecution thereunder at the cost of the city.