22 La. Ann. 600 | La. | 1870
This is a suit enjoining the municipal recorder and the city of Jefferson from seizing and detaining certain carts, mules, etc., belonging to and used by the New Orleans Manufacturing and Building Company in manufacturing bricks, and claiming one thousand dollars damages.
■ The defense is the general denial, and a special plea that the arrest of the said property was for the violation of a city ordinance, which it was the duty of the defendants to enforce, and which reads as follows:
“ Section 43. Each and every cart, dray, or other vehicle, used for ‘.he purpose of delivering bricks, lumber, etc., or hauling the same to or from their place of business, free from charge oí hauling, ten dollars per annum ” ...
The plaintiffs’ brick yard is situated on one side of Tchoupitoulas street and their batture on the opposite side, and the carts seized were used only in hauling clay, sand and wood from the batture across the street to the yard for making and burning bricks. They were not used for hauling bricks. The question is, were they embraced in the ordinance? Clay, sand and wood are not lumber, and the characters, “etc.,” following that word in the ordinance, cannot, with any certainty, be held to have been intended by the councilmen to describe such articles. The terms “ bricks ” and “lumber,” used by them have their technical meaning, and if it was intended that carts used exclusively in hauling clay, sand, wood, or other materials necessary in manufacturing bricks, it should have been so expressed. As the ordinance describes the uses of the carts for which license is to be paid, and the uses to which the carts in question were put are not mentioned, the said carts can not be held subject to said license (See 1 M. 125), and the attempt to enforce its collection was not authorized.
The question of damages presents a little more difficulty. It is not denied, however, that the recorder had jurisdiction of the subject matter, and the right to enforce the collection of the license on each cart, if it was subject to it; and the most that can be said is that he erred in his judgment of the purview of the ordinance. He thought he had the authority of law to make the plaintiffs pay a license on each of the carts, and he directed the license to be collected. Under the circumstances of this case, we are of opinion that the defendants are not responsible for damages, as claimed.
The judgment below should have been in favor of plaintiffs, perpetuating the injunction, and in favor of defendants, dismissing the demand of plaintiffs for damages.
It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of plaintiffs, perpetuating the injunction herein, and in favor of defendants, rejecting plaintiffs’ demand for damages. Appellees to pay costs in both courts.
Rehearing refused.
