Rost v. Mayor

| La. | Mar 15, 1840

Simon, J.,

delivered the opinion of the court:

The plaintiff sues to recover a sum of three thousand five hundred dollars, alleged to be the value of two rollers of an English iron sugar mill, and of the iron frame and brass works thereof, which, he states, were illegally taken possession of by the defendants, and by them caused to be sold for the sum of eighteen dollars, in his absence, without his knowledge, and in violation of his right of ownership.

There was judgment in the court below in favor of the plaintiff for the amount claimed, and the defendants appealed.

It appears that in consequence of an act of the legislature approved on the 6th of March, 1834, entitled “an act to explain the extent of the powers vested by law in the Mayor and City Council of the city of New-Orleans, and for other purposes,” the corporation of New-Orleans thought themselves authorized to maintain a former ordinance prescribing, that all property remaining on the levee or in the streets, for a longer time than allowed by the police regulations of the city, should be removed or sold for the account of whom it may concern; and that by virtue of the said ordinance, and after several reports made by the city surveyor, the plaintiff’s cylinder, and other objects, were sold at public auction. But the plaintiff contends that the act of the legislature and the ordinance of the corporation are unconstitutional, as their effect would be to divest citizens of their property without trial in due course of law.

This cáse presents exactly the same question as.that decided upon by this court in the case of Lanfear vs. Mayor et al., 4 Louisiana Reports, 97; except, however, that at that time, the ordinance of the corporation was not specially authorized by any law of the legislature ; and this court was then of opinion, that not only any such power was not. conferred by the act of incorporation, but that none such could be constitutionally conferred. We think the parish judge did not err in considering the third section of the law passed by the legislature on the 6th of March, 1834, as unconstitutional, and in declaring it to be so, so far as it authorizes the enforcing of a forfeiture, and empowers the corporation to divest the owner of his property without trial in due course of law. The object of the law was to give to the corporation the power of abating a nuisance, and if, in their opinion, there was any need of a special enactment of the legislature for that purpose, it seems to us that their object was sufficiently attained by obtaining the power of removing the encumbrances on the levee, streets, &c., at the expense of the proprietor; without being necessary to resort to unconstitutional means of redress.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.