97 So. 661 | La. | 1923
Lead Opinion
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 dis
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.
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.
Rehearing
On Application for Rehearing.
By the WHOLE COURT.
In answer to the rule to show cause why a temporary injunction should not issue in this case, the defendant Compagno averred that his establishment, at the corner of Carrollton avenue and Maple street, was exempt from the Ordinance No. 5645 (amended by Ordinance No. 5867), because the building had been previously occupied and used for the business complained of, and had not “become vacant,” in the meaning of the ordinance,' as defendant averred. That defense was not submitted for decision, and, of course, was not considered by the judge of the civil district court. His ruling, refusing to issue an injunction pendente lite, was based upon the one proposition that the Ordinance No. 5645 (amended by Ordinance No. 5867) was ultra vires and invalid. , That, of course, was the only matter submitted to this court for decision. Our decree, purporting to enjoin and restrain the defendant from conducting a fruit or vegetable or oyster business, or any other business, in violation of the Ordinance No. 5645 (amended by Ordinance No. 5867), was supposed jto be rendered in compliance
If the decree which we have rendered in this case, purporting to grant an injunction, should be construed as. a judgment on the merits of the case, or on any other question than the one which was decided by the judge of the civil district court, it would violate article S95 of the Code of Practice, which says that the Supreme Court can only exercise its jurisdiction in so far as it shall have knowledge of the matters argued or contested below. Worse than that would be the denial of due process of law, if our decree should be construed as a final judgment on the merits of the case.
It is ordered that this case be remanded to the civil district court for further proceedings consistent with the opinion which we have rendered on the question of validity of the Ordinance No. 5645 (amended by Ordinance No. 5867), and, to that end, the judge of said court is authorized to proceed as if this court had done nothing more than set aside his order refusing a preliminary injunction for the one and only reason that, in his opinion, the ordinance referred to was invalid.