Rеlator, as owner of a lot of ground fronting on Oak street in the city of New Orleans, applied to Wm. J. Hardee, city engineer of the city of New Orleans, for a permit to erect a building on said lot, in order that he might establish therein a private market. The city engineer refused to grant the said permit for the reason that the establishment and operation of such market was forbidden by the following ordinance of the city of New Orleans:
No. 1812, Commission Council Series.
Section 1. Be it ordained by the commission council of the city of New Orleans, that hereafter it shall he unlawful for any person, firm or corporation to establish any grocery, barroom, oyster shop, fruit shop, market, laundry, etc., on Oak street, from Carrollton avenue to Broadway street it being the object and purpose of this ordinance to confine buildings on said street for residential purposes only.
Section 2. Be it furthеr ordained, etc., that any person or persons, firm or corporation violating any of the provisions of section 1 of this ordinancе shall, upon conviction thereof before any court of competent jurisdiction be fined not more than twenty-five dollars ($25.00) or sentenсed to imprisonment for not more than thirty days, at the discretion of said court.
Adopted by the commission council of the city of New Orleans Sept. 8th, 1914.
Jos. B. Norriss,
Asst. Clerk of Commission Council.
Approved Sept. 8th, 1914.
Martin Behrman, Mayor.
He thereupon applied to the civil district court for the parish of Orleans for a writ of mandamus directing the city of New Orleans, through Hоn. Martin Behrman, mayor, and Wm. J. Hardee, city engineer of said city, and commanding the latter to issue to relator a building permit to erect a рrivate market on his said lot of ground, and he further prayed for a writ of injunction restraining the said city of New Orleans from enforcing the said ordinanсe against him and from interfering with the erection and establishment by him of a private' market upon his said property.
Relator alleges as grоunds for relief that the said ordinance of the city of New Orleans is illegal, null, and void, for the following reasons, to wit:
(1) That the commission council of the city of New Orleans had and has no power, right, or authority to pass said ordinance, and the same is ultra vires.
(2) That said ordinance is oppressive, unreasonable, unjust, and illegal.
(3) That said ordinance deprives relator of his property without due process of law, in violation of the Constitution and laws of this state, and in violation of the Constitution of the United States, and especially the Fourteenth Amendment thereоf.
He further charges that the enforcement
The answer of defendants admits all the facts alleged by relator, but denies the conclusions of law drawn therefrom, and especially dеnies the alleged illegality of the ordinance upon which the refusal of relator’s building permit xvas based.
The trial judge after due hearing rendеred judgment as prayed for by relator, and from such judgment the city of New Orleans prosecutes the present appeal.
In the case of Calvo v. City of New Orleans,
“The object and purpose of this ordinance is to coniine buildings on said avenue for residential purposes only.”
The court in effect held that the aesthetic does not fall within the exercise of the police power, and as the ordinance embraced aesthetic considerations only, which are not named in the city chаrter, it could not be upheld as coming under the police power of the municipality, and as it interfered with the liberty of action and property rights of the individual citizen, it was ultra vires, unreasonable, and invalid.
Defendant distinguishes the present from the Calvo Case in this, that the business involved in that сase was that of a dry grocery, which it says is not subject to police regulation, while in the present case ■ the business involved is that of a рrivate market, which has repeatedly been held subject to regulation under the police power. In answer to this contention relator maintains that the ordinance invoked by the defendants in the present case, just like that in the Calvo Case, was adopted, not for the рurpose of safeguarding the public health or maintaining public order, but for the sole purpose of beautifying the neighborhood, and, being based on Eesthetic considerations, is an illegal interference with the liberty and property rights of relator, just as was held in the Calvo Case. But dеfendant contends that the motives which induced the commission council to adopt the ordinance which is assailed may not be inquired into by the courts (New Orleans v. Kaufman,
“The universal and most effectual way of discоvering the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the Legislature to enact it.”
It then becomes apparent that the ordinance invoked in this case against the free use by relator of his property is not one based upon considerations of public health or public order, and whose validity rests upon the police powеr of the city, but an ordinance to beautify the neighborhood to which it applies, adopted for aesthetic purposes, and therefore, like that involved in the Calvo Case, ultra vires, unreasonable, and invalid.
For these reasons, the judgment appealed from is affirmed.