114 So. 491 | La. | 1927
Lead Opinion
(1) If the fact that defendant contemplated an ordinance (which it might never pass) was a defense to this action (which we doubt), the place to present that issue was in the lower court, and the time to present it was before the judgment was rendered;
(2) The passage of a city ordinance after a final judgment fixing the rights of parties at the time of its rendition cannot avail to disturb the rights acquired by virtue of that judgment (City of Shreveport v. Dickason,
(3) Even if such defenses were good, they could not be urged for the first time in this court, since the proof thereof does not appear by the mere examination of the record (C.P. art. 902); and
(4) Even if such pleas were permissible in this court, they should have been presented before the case was submitted (O'Hara v. City of New Orleans, 30 La. Ann. 152).
The motion to remand is therefore denied.
Addendum
This is a proceeding by mandamus, to compel the city of Alexandria to issue to relators a permit to build an oil-filling station in said city.
"That all such municipalities [i.e. having a population in excess of 500] shall be authorized to require building permits and permits for repairs, which permits shall be granted according to uniform rules, and shall never be refused when the application setting forth the character of the building to be constructed, or the nature of the repairs, conforms to the requirements of the ordinances of the municipality passed in pursuance of this act; provided that all such applications shall be passed upon by the governing body of the municipality, or the committee designated by it, within ten days after the filing of the same."
From which it will be observed that the duty of issuing such permits, when applied for, is placed upon the municipalityitself, and not upon any officer thereof.
And this disposes of the exception herein filed, that these mandamus proceedings should have been directed against the cityengineer.
And if such were the fact, this court would so rule. But the fact is that the defendant has an ordinance requiring such permit, and the allegation of the relators that they applied for such permit, and that it was refused, is a sufficient allegation that such permit is required in the absence of a special plea denying the need for such permit.
We are of opinion that the relators are entitled to a permit to build, provided their building be erected in conformity with the building regulations established by defendant's ordinances.