Brunetti v. Mayor

Martin, J., delivered the opinion of the court. This was an 'action to render the, corporation of New-Orleans responsible in damages for refusing to the plaintiff the privilege of a license to sell fruit at a stand on the levee, [433] which had been granted to a person now deceased, to whose rights the plaintiff claims to have succeeded by inheritance. He had a judgment for damages, which the defendants seek - t.o have reversed in this court. Licenses granted to persons by the mayor of New-Orleans, in pursuance of certain ordinances, to sell fruit at stands or stalls on the levee, confer personal privileges whiplt cease at the death of the grantee, although the period tor which the license is given has not expired. It appears that the mayor is authorised and required annually to grant licenses, which authorise the grantee to sell fruit on a spot to be designated, and susceptible of being changed by an officer of the city police. An annual sum is paid for these licenses, payable quarterly ,in advance. The plaintiff was allowed after the death of the incumbent to sell fruit until the end of the quarter, for which the last payment had been made by the deceased grantee. The counsel for the defendants contends, that these licenses are personal to the grantee, and therefore not transmissible by inheritance. The plaintiff’s counsel, on the other hand, urges that they are evidence of a lease for the term for which they are granted, of the spot of ground occupied as the stand for the sale of fruit. This is the only question which the case presents. The necessity of applying to the chief magistrate of the city for such licenses, offers a presumption that some discretion is to be exercised as regards the person applying for them ; and in this respect they differ from a pedler’s license, which is obtained from the treasurer of the state by any person paying the tax. The obligation imposed by the ordinance on the grantees, to have their licenses ready at all times to be exhibited to the police officers, appears in some degree calculated,' besides being a means to inforce payment for the use of the privilege under the license, to prevent any other person, not apparently the grantee, from being employed in selling fruit, except as agent or servant of the grantee, who is responsible for them. If these licenses may be had as matter of right, on mere application, and the mayor is without the exercise of any discretion, then the plaintiff cannot complain, if he was required to apply for a license in his own name. [434] It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be annulled, avoided and reversed, and that there be judgment for the defendants, with costs in both courts.