| "{\"id\": \"2456863\", \"name\": \"The State of Louisiana vs. John Mahner et als.\", \"name_abbreviation\": \"State v. Mahner\", \"decision_date\": \"1891-04\", \"docket_number\": \"No. 10,730\", \"first_page\": \"496\", \"last_page\": \"500\", \"citations\": \"43 La. Ann. 496\", \"volume\": \"43\", \"reporter\": \"Louisiana Annual Reports\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T20:07:15.905110+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Louisiana vs. John Mahner et als.\", \"head_matter\": \"No. 10,730.\\nThe State of Louisiana vs. John Mahner et als.\\nAn ordinance of a municipal corporation which violates any of the recognized principles of legal and equal rights is necessarily void so far as it does so.\\nAn ordinance which prohibits dairies within certain designated limits and gives the City Council the authority to grant permission to carry them on within the prohibited limits is not general in its operations among the class it is intended to affect, and is therefore null and void.\\nAPPEAL from the Third Recorder\\u2019s Court of New Orleans. Landry, J.\\nHenry Renshaw, Assistant Oity Attorney, and Carleton Hunt, City Attorney, for Plaintiff and Appellee:\\nUnless ordinance shows no action for penalty was intended without prior demand, unnecessary to aver one. Unnecessary to aver notice of ordinance, this being conclusively presumed as to all on whom it is binding. Dillon Mun. Cor. See. 41G, ICd. of 1S90.\\nAll on whom ordinances are binding are bound to take notice of them. Dillon Mun. Cor. Sec. 306, Ud. of 1890.\\nThe notice referred to in Ordinance 3175 O. S. has no reference to the fine imposed in this ease.\\nThe designation of an official is sufficient, if. by reference to the Oity Charter, the official intended may easily be ascertained.\\nThe enforcement of clause of ordinance under which defendant is prosecuted not subject to the discretion of any official.\\n\\u2022Ordinance 3175 O. S. within the power of Oity to enact under Charter of 1856; Ordinance 3414 C. S. authorized by Act 20 of 1882, Sec. 7.\\nNo unlawful discrimination by Ordinance. State vs. Schlemmer, 42 An. \\u2014; 8 Southern Reporter, 308, 309; 3 An. 689.\\nThe question of the validity of a judgment is distinct from the question of the manner of its enforcement.\\n\\u2022Courts will not interfere with discretion of municipal corporation unless the corporation has manifestly abused its powers. 42 An. 487.\\nA. D. Henriques and Branch K. Miller for Defendants and Appellants :\\nWhere an Ordinance provides a penalty for failure to obey a notice, the notice given must conform strictly to the Ordinance. 36 An. .903.\\nThe operation of an Ordinance can not be left to the discretion of an executive officer. 15 A. and E. Oorp. Cases, 356.\\nThe power to prevent the following of a lawful occupation, save in certain localities, is not inherent in a municipal corporation.\\nAn Ordinance void for want of power in the Council which passed it, can not be valid against an amendment of a subsequent Council having power to pass the original Ordinance. Hun, Pol. Ord. 138, 162.\\nOrdinances must be general in their operation. 1 Dillon Hun. Corp. Sec. 322; 118 IT. S. 551.\\nPower to imprison in default of payment of fine must be expressed. Dillon Hun. Corp. Secs. 336, 353, 3804.\\nAn Ordinance can not make one continuous act a number of offences. 1 Dillon Hun. Corp. 342; 88 111. 274; 12 Johns, (X. Y.)122; 9Wenclell, (X. Y.) 591; 3 An, 688; 36 An. 247\", \"word_count\": \"1606\", \"char_count\": \"9567\", \"text\": \"The opinion of the court was delivered by\\nMcEnery, J.\\nThe defendants were prosecuted for violating or - dinanee No. 3414 of the City of New Orleans, convicted and fined.\\nThis ordinance, and amended ordinance No. 3175, extended the limits within-which the dairies were prohibited.\\nThe defendants ask that the ordinance be declared null and void, because it is not general in its operation, is unconstitutional and oppressive.\\nThe objectionable feature of the ordinance is contained in the first section.\\nThis 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.\\nThe 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.\\nThe 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.\\nIt was the evident intention of the Council in amending ordinance SITS to prohibit dairies in other places than within the prescribed limits.\\nThe 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.\\nSection 4 of ordinance 3414 is open to the objections above stated. It is as follows:\\n\\\"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.\\\"\\nThis section establishes an inequality, granting to some persons, following the same occupation, privileges that are not extended to others.\\nThe 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.\\nBoth 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.\\nThis 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.\\nThe 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.\\nIt 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.\"}" |