83 So. 826 | La. | 1920
Defendant appeals from a conviction and sentence under the following section of an ordinance of the municipal council of the city of New Orleans, to wit:
“1. Permits. — No taxicab or for-hire automobile shall be permitted to operate or stand upon the public street without an official permit from the department of public safety, designating the location at which such vehicle will be permitted to stand.”
He is the operator of a public ear, and parked the same at No. 711 Common street, without a permit from the department of public safety. His counsel contends that the section quoted violates article 2 of the state Constitution, and the Fourteenth Amendment to the federal Constitution, in that it permits the commissioner of public safety to discriminate between individuals, and to deny to some the equal protection of the laws. It is further contended that the section quoted violates section 28 of the Act 159 of 1912, known as the City Charter.
These issues were first raised in a demurrer to the charge embraced in an affidavit in the court below, charging the accused with having parked his livery car at No. 711 Common street, without first obtaining a permit so to do from the department of public safety. This having been overruled, a bill of exceptions was retained to the ruling of the court The accused was thereupon tried and convicted, and again raised the same issues in a motion in arrest of judgment, which was likewise overruled, and a bill of exceptions reserved. No formal bills appear to have been prepared or signed; but, since the entire record appears to have been certified by the recorder himself, we are justified in treating the matter as sufficiently appearing for our consideration.
Opinion.
“Notwithstanding that express provision may exist to enact, the ordinance must provide a uniform rule of action; it must contain permanent legal provisions, operating generally and impartially, for its enforcement cannot be left to the will or unregulated discretion of the municipal authorities or any officer of the corporation.” McQuillin on Mun. Corp. vol. 2, p. 1580, § 728, and authorities there cited; City of New Orleans v. Sanford, 137 La. 628, 69 South. 35, L. R. A. 1916A, 1228.
We find it unnecessary to pass upon the question of whether or not the ordinance conflicts with the city charter.
For the reasons assigned, the conviction and sentence is set aside and annulled, and it is now ordered and decreed that the demurrer be and is hereby sustained and the accused discharged.