#### Leon C. MONCLA, Raymond Mahfouz and Joseph D. Doll, Plaintiffs-Appellees, v. CITY OF LAFAYETTE, Louisiana, Defendant-Appellant.

No. 3152.

Court of Appeal of Louisiana, Third Circuit.

July 29, 1970.

On Rehearing En Banc Nov. 2, 1970.

Writ Refused Dec. 14, 1970.

See also La.App., 226 So.2d 572.

Bean & Rush by James W. Bean, Lafayette, for defendant-appellant.

Domengeaux, Wright & Bienvenu by Mark Bienvenu, Lafayette, for plaintiffs-appellees.

Before HOOD, CULPEPPER and MILLER, JJ.

HOOD, Judge.

Plaintiffs, being owners of property in the City of Lafayette, seek a judgment decreeing Lafayette City Ordinance Number 883 to be null and void, and enjoining the city from attempting to enforce that ordinance. The sole defendant is the City of Lafayette. Judgment was rendered by the trial court in favor of plaintiffs and against the city, “decreeing Ordinance Number 883 of the City of Lafayette, Louisiana, inoperative and without force and effect.” The City of Lafayette has appealed.

After the record was lodged in this court, the plaintiffs-appellees filed a motion to dismiss the appeal on the ground that the issues presented are now moot, and that any decision which we might render in this case would be of no effect.

The ordinance being attacked here is a zoning ordinance which the City of Lafayette adopted as an emergency measure. In adopting it, the city complied with all of the requirements for adopting emergency ordinances, but prior to the time this appeal was taken it did not comply with the requirements for ordinances adopted in the ordinary course of events.

*308According to the Charter of the City of Lafayette, an emergency ordinance may be adopted by the Board of Trustees of that city if the legislation, among other things, is “declared to be urgent.” An emergency ordinance, according to the Charter, goes into effect “immediately upon its passage,” whereas a regular ordinance does not become effective until other procedures are followed, including the publishing of the ordinance in its entirety.

Plaintiffs in this suit contend that Ordinance Number 883 is null and void as an emergency ordinance, primarily because it was not declared to be urgent when it was adopted and because no emergency actually existed in law or in fact. The trial judge concluded that no emergency existed, and that the ordinance thus was inoperative and unenforceable as an emergency measure. He recognized, however, that the same ordinance could become effective and enforceable as a regular ordinance upon proper publication. In his reasons for judgment the trial court stated:

> “This ruling does not render the zoning ordinance null and void but serves to make the ordinance inoperative until the proper publications are given in accordance with the Charter provisions of the City of Lafayette, Louisiana.”

In the motion to dismiss the appeal plaintiffs allege that since the rendition of judgment by the trial court and the granting of the appeal in this case, the City of Lafayette has adopted Ordinance Number 883 as a regular ordinance. Attached to that motion is a joint stipulation of counsel to the effect that “Ordinance Number 883 of the City of Lafayette has presently been adopted as a regular ordinance, having been duly adopted by the Mayor and Board of Trustees of the City of Lafayette, said ordinance being published in its entirety in the official journal for the City of Lafayette, The Lafayette Daily Advertiser, and that more than thirty (30) days have lapsed since said publication.”

The only issue presented in this suit is whether Ordinance Number 883 is valid and enforceable as an emergency ordinance. Since the ordinance has been adopted as a regular ordinance, and presumably it is now valid and enforceable as such, the question of whether it was properly adopted as an emergency ordinance, or whether it could have been enforced as emergency legislation, is merely academic. Any judgment which we might render on those issues would have no effect, so the questions presented here are now moot.

It is settled that if the law on which a judicial proceeding is founded is repealed or superseded by a statute enacted while the proceeding is pending in court, the proceeding is thereby abated. City of New Orleans v. Ryman, 79 So.2d 573 (La.App.Orl.1955); Ouachita Securities Corporation v. Cooper, 183 La. 995, 165 So. 178 (1935).

Applicable here also is the rule that a court will not render a judgment which cannot be made effective, nor will a court give opinions on moot questions from which no practical results can follow. Spinato v. Lowe, 239 La. 604, 119 So.2d 480 (1960); DiGiovanni v. Parish of Jefferson, 151 So.2d 528 (La.App. 4 Cir. 1963).

The judgment appealed from, however, decrees simply that Ordinance Number 883 of the City of Lafayette is “inoperative and without force and effect.” However, the validity of Ordinance 883 as a regular ordinance was not before the trial court. If this appeal should be dismissed, that judgment would become final and a question would be presented as to whether the ordinance could be enforced now, as a regular ordinance, even though it may have been unenforceable as an emergency ordinance at the time the suit was filed.

We have concluded that the motion to dismiss the appeal should be denied, and that judgment should be rendered on this *309appeal reversing the judgment of the trial court and dismissing the suit. We express no opinion as to the validity or invalidity of the legislation as a regular ordinance. Under the peculiar circumstances presented here, we think all costs should be borne by the defendant.

For the reasons herein set out, the motion to dismiss the appeal is denied. The judgment appealed from is reversed, and judgment is hereby rendered dismissing the suit. All costs, including the costs of this appeal, are assessed to defendant-appellant.

Reversed.

Before FRUGÉ, SAVOY, HOOD, CULPEPPER and MILLER, JJ.

ON REHEARING EN BANC

FRUGÉ, Judge.

A rehearing was granted in this case so that we might reconsider our holding reversing the judgment of the Fifteenth Judicial District Court dismissing plaintiffs’ suit.

The facts, as set forth in our original opinion, are that plaintiffs, as owners of certain property located in the City of Lafayette, filed suit seeking a judgment decreeing Lafayette City Ordinance Number 883 to be null and void, and enjoining the City from attempting to enforce that ordinance.

The ordinance in question was adopted as an emergency ordinance which, according to the Charter of the City of Lafayette, rendered it effective “immediately upon its passage”, without the necessity of following other procedures for the adoption of regular ordinances, including the publishing of the ordinance in its entirety in the official journal of the City of Lafayette.

Subsequent to the adoption of this ordinance, as an emergency ordinance, plaintiffs applied for a building permit for the construction of an apartment house complex, on property owned by plaintiffs. The City refused to issue this building permit for the sole and only reason that the property, where the apartment complex was to be erected, was zoned for single family dwellings under the emergency ordinance. Upon the City’s refusal to issue this permit, the instant suit was instituted by plaintiffs. In this suit, plaintiffs contend that no emergency existed in law or in fact and that the ordinance was null and void as an emergency ordinance. The trial court rendered judgment holding the ordinance inoperative and unenforceable as an emergency measure, and the City of Lafayette appealed. While the appeal was pending the ordinance was adopted as a regular ordinance.

In our original opinion we held that, since Ordinance Number 883 had been adopted as a regular ordinance, the question of whether it was properly adopted as an emergency ordinance and enforceable as such was *moot*and reversed the judgment of the trial court, dismissing plaintiffs’ suit.

The facts surrounding the adoption of Ordinance Number 883, as an emergency ordinance, are not in dispute and were stipulated to by the parties to this suit or otherwise appear from the record.

Plaintiffs had been successful in declaring Ordinance Number 718 (the prior existing zoning ordinance) invalid by a prior suit. The City of Lafayette immediately adopted Ordinance Number 883 as an emergency measure, the reason being that the City was without a zoning ordinance after Ordinance Number 718 had been declared invalid.

The trial court, in considering the validity *vel non*of this emergency ordinance, stated:

> “Where the City Charter does not confer authority on the governing body of the municipality to declare an emergency but only creates an exception to the prescribed mode of contracting, predi-*310eating the power of the governing authority on the existence of the emergency as a fact, the Court may review the findings as to the existence of the emergency and may declare that no emergency exists.

> “While the Court must give great weight to the determination of the governing authority' of a municipality respecting the conditions supposedly giving rise to the emergency, the governing authority does not possess a legal discretion in the matter and its findings are not beyond review.

> “The Board of Trustees of the City of Lafayette were aware of the vulnerability of its original zoning Ordinance #718 and took no action to remedy the existing defects until this Court rendered judgment on August 18, 1969.

> “There was no unforeseen occurrence or combination of circumstances which operated to change the situation and it cannot be said that the decision to reenact the zoning ordinance at a particular time was demanded by an emergency. The suspensive appeal by the City of this Court’s original judgment had the effect of continuing Ordinance #718 in effect and would have given the City ample opportunity to enact a new ordinance under the provisions of the Charter with the usual notices.

> “This Court is of the opinion that no emergency existed which would warrant the Board of Trustees of the City of Lafayette to enact zoning ordinance #883 as an emergency measure. To hold otherwise would lay precedent for governing authorities of municipalities to designate legislation as emergency measures in order to defeat the rights of citizens to initiative and referendum.” Tr. 15, 16.

We are in agreement with this conclusion. We take cognizance of the holdings of the cases of State ex rel. Maestri v. Cave, 193 La. 419, 190 So. 631; McIntosh v. City of New Orleans, 188 So.2d 183 (La.App. 4th Cir. 1966) ; Grice v. Mayor and Council of Morgan City, 164 So.2d 370 (La.App. 1st Cir. 1964); Breland v. City of Bogalusa, 51 So.2d 342 (La.App. 1st Cir. 1951), which the City of Lafayette cites as authority limiting the judiciary’s scope of review of legislative discretion. However, we do not interpret these decisions to hold that a court cannot question the validity of an ordinance adopted as an emergency, where no emergency exists. See New Orleans Fire Fighters Association Local 632, A.F.L.-C.I.O. v. City of New Orleans, 204 So.2d 690 (La.App. 4th Cir. 1967).

In our opinion, the fact that the City of Lafayette was without a zoning ordinance at the time Ordinance Number 883 was adopted does not of itself constitute an emergency. The Board of Trustees of the City of Lafayette had been aware for a considerable period of time of the vulnerability of its prior zoning ordinance (Ordinance Number 718). The City waited until this ordinance was declared invalid before they attempted to' remedy the situation, and then by adopting Ordinance Number 883 as an emergency ordinance. Furthermore, at the time Ordinance Number 883 was adopted as an emergency, Ordinance Number 718 was still in effect due to the fact that the delays for taking a suspensive appeal by the City had not lapsed. In fact, the City of Lafayette subsequently perfected a suspensive appeal from the judgment declaring Ordinance Number 718 invalid. Accordingly, the ordinary delays of this appeal would have afforded the City ample time to enact a new zoning ordinance, complying with the requirements of the City’s charter for the adoption and enactment of regular ordinances.

In New Orleans Fire Fighters Ass’n Local 632, A.F.L.-C.I.O. v. City of New Orleans, 204 So.2d 690, 695 (La.App. 4th Cir. 1967), “emergency” was defined as:

> “[I]t is more commonly used and generally understood to mean a sudden occurrence or exigency, implying imminent *311danger which leaves no time for deliberation, or a sudden or unexpected necessity requiring speedy action; and as a generalization, it is a sudden or unexpected event which creates a temporarily dangerous condition usually necessitating immediate or quick action.”

Also persuasive, and perhaps even controlling, of the issue involved in this case, is the language of the Louisiana Supreme Court in State ex rel. Holcombe v. City of Lake Charles et al., 175 La. 803, 144 So.502, 504 (1932). In that case, the Supreme Court was presented with a motion to remand because the City therein had passed an ordinance subsequent to the filing of suit for an injunction against enforcement of a previous ordinance. The Court stated :

> “The intervenors have filed in this court what they call a plea in abatement, and a motion to remand the case for the purpose of sustaining the plea, in which they set forth that, after the case was decided by the district judge, the municipal council of Lake Charles adopted another zoning ordinance (No. 533) which purports to forbid the establishment of a filling station on the relator’s property. In the exercise of our discretion we decline to remand the case. There is no good reason why a case of this kind should be remanded or reopened whenever the municipality adopts another ordinance in defense of the suit.”

This case, then, is similar to the instant case and the result should be the same where it concerns the subsequently adopted ordinance.

For the reasons herein set out, the judgment of the District Court is affirmed and Ordinance Number 883 of the City of Lafayette is held inoperative and without effect during the time it existed as an emergency ordinance until the date it was adopted as a regular ordinance pursuant to the provisions of the City of Lafayette Charter.

Affirmed.

HOOD, J., dissents for the reasons assigned in our original opinion.

CULPEPPER, Judge

(dissenting).

I agree with the majority decision on rehearing that this case is not moot. The plaintiff wants a permit to build apartment houses. His application for such a permit was denied by the city on the basis of emergency zoning ordinance No. 883. Plaintiff then filed a suit attacking the validity of the ordinance on the grounds that there actually was no emergency. The district judge held there was no emergency and decreed the emergency ordinance invalid. The city appealed. Plaintiff concedes that if the district court judgment is affirmed, he will seek a mandatory injunction ordering' the city to issue a building permit for the apartment houses, on the theory that at the time he applied for the permit there was no valid zoning ordinance prohibiting such structures. Thus, it is clear that plaintiffs’ rights to the building permit may depend on the validity of the emergency zoning ordinance, regardless of the fact that a regular ordinance to the same effect was adopted after plaintiff applied for the permit. The case is not moot. We must decide on the merits whether the emergency ordinance is valid.

However, I strongly disagree with the majority on rehearing in its holding that there was no emergency justifying the city in the adoption of this emergency zoning ordinance No. 883. The facts show that the city’s comprehensive zoning ordinance No. 718 was held invalid by the district court in a previous suit on August 18, 1969. On the very next day, August 19, 1969, the city of Lafayette adopted emergency zoning ordinance No. 883, the one attacked in the instant suit. The purpose was to. protect its citizens during the delays necessary to adopt another regular zoning ordinance. The city also filed on August 27, 1969, a timely suspensive appeal. It had already initiated proceedings for the adoption of a regular *312zoning ordinance by filing the ordinance, advertising it, etc. When the regular ordinance became effective, the suspensive appeal in the previous suit was dismissed.

The majority opinion implies that the city was negligent or dilatory in some respect. This is not correct. The city acted promptly and reasonably to protect its citizens from the financial losses, hazards to health and disturbance of peace and quiet which could have resulted from being without a comprehensive zoning ordinance. Saloons, dance halls, junkyards, industrial structures, etc. could have been built in the middle of residential districts, had it not been for the emergency zoning ordinance. This was a serious emergency.

The majority opinion concedes our jurisprudence is established that judicial review of the exercise of legislative discretion by such municipal governing bodies is strictly limited. Certainly, in the present case, the city was acting within the realm of its great legislative discretion.

For the reasons assigned, I respectfully dissent.