State v. Zurich

The opinion of the court was delivered by Nicholls, C. J. Appellant directs our attention to the evidence, from which, he states, it would appear that he was about to build a boat for the Mexican government on the shore at the water’s edge of the Mississippi river; that he erected (one hundred and twenty feet outside of the public levee) near the water’s edge, with the permission of one Bisso, the riparian proprietor of the land fronting at that point on the river, a temporary awning or shed to protect his workmen while working from the sun and rain, and enclosd one end of the same as a small closet in which to lock up his tools, the cost of the whole not amounting to more than one hundred dollars; and he maintains — 450 — that an examination of the ordinance would show that it applied only to houses in the city, and did not apply to boats on the edge of a navigable stream. He also calls to our attention that the recorder had imposed a heavier fine than the ordinance authorized even if it was violated; that the ordinance provided a penalty against the owner of the ground of not less than five dollars nor more than twenty-five dollars, and that on failing to pay the fine he should be imprisoned one day for each dollar of fine imposed, whereas the recorder had fined him twenty-five dollars or thirty days’ imprisonment. He argues to us, also, that nowhere has the power been given to the Common Council to prohibit the erection of a building without the permission of the City Engineer; that this would be a delegation of power not to be tolerated in a free country (citing State vs. Bright, 38 An. 1) . - He further contends that a violation of the city ordinance could not be prosecuted in the name of the State of Louisiana, and that the police officer was without authority to advance a charge of the character which had been brought. No brief has been filed on behalf of the city of New Orleans, nor argument made" as to the question raised of the pow%r and authority of the Oily Council to pass the ordinance in question. The City Attorney very frankly admitted, in open court, that, in his opinion, the sentence imposed by the recorder was not justified by the facts, and that the provisions of the ordinance did not extend to the acts done by the defendant. Counsel of the latter has pressed that admission upon us, as also the evidence itself in the record touching the facts, and urged that we reverse the judgment upon the merits, by reason of the facts and also upon the want of power in the recorder to pass the sentence he did (it being in excess of the penalty declared by the ordinance), independently of any question as to legality of the ordinance. The proceedings in the case are of a criminal character, and, as such, are not reviewable by the Civil District Court or Court of Appeals. Defendant’s relief must be found in this court, if at all, either through appeal, or under our supervisory jurisdiction. We have on a number of occasions declared that our appellate jurisdiction, under Art. 81 of the Constitution, in cases in which the constitutionality and legality of any fine, forfeiture or penalty imposed — 451 — by a municipal corporation was in contestation, was limited to determination of the question of the constitutionality or legality of the fine, forfeiture or penalty itself, and to an examination of the particular facts necessary to be considered by us, in order to reach a conclusion on that subject; that we were not, on appeal, authorized to examine into facts, which assuming the fine, forfeiture or penalty itself to be legal and constitutional, simply would go to show whether the accused was or was not guilty under the ordinance imposing the penalty; that questions of that kind, in allowable cases, could.only be brought before us under and through our supervisory jurisdiction. State vs. Callac, 45 An. 29; State vs. Courcier, 46 An. 907; State vs. Dean, 45 An. 441; State vs. Fourcade, 45 An. 722; State vs. Marshall, 47 An. 646; Suthon vs. Houma, 46 An. 1561, 1562; Pratt vs. Holmes, 48 An. 129; Breazeale vs. Frank, 42 An. 226. We have examined the charter of the city of New Orleans (Act No. 20 of 1882) to ascertain what powers were conferred by that instrument upon the Common Council. The eighth clause of Sec. 8 authorizes the city “ to determine within what limits wooden buildings shall not be erected, and to prevent the reconstruction of old buildings within such limits.” The ninth clause of the same-section authorizes it “to regulate the safety, height and thickness of the walls and structures.” We find nothing more in the charter bearing on the subject of buildings or structures within the city. As matters are presented to us, we do not understand that the right of the city to pass ordinances “regulating the safety, height and thickness of the walls and structures,” as conferred by the ninth clause a'mve mentioned, is before us, nor is that of the city to exact that, prior to building or altering structures, parties proposing to do so should submit plans and specifications of the same to the City Engineer, nor is that of the city to appoint a City Engineer, and to devolve upon him the duty of inspecting the plans and specifications submitted, in order to ascertain whether the proposed building' or alteration will be in conformity to the ordinances of the city regulating structures, nor the right of the city through the City Engineer, or otherwise, to institute civil legal proceedings against owners, either by way of prevention by them of violation of the ordinances regulating structures or for punishing parties who have, in point of fact, violated the same, and forcing what has been done to be undone. — 452 — Defendant has not been charged with having erected a building or structure which does not come up to the standard requirements of the city ordinances; he has not been charged with not having, before erecting a building, submitted plans and specifications to the City Engineer. What he has been charged with, and what he has been convicted of, is, of having, without the prior approval by the City Engineer (evidenced by a permit from him), erected a building. The question, therefore, is, whether the City Council has the power and authority to impose upon owners, as a condition precedent to the exercise of a right by them of erecting buildings upon their property or of making alterations in buildings already erected that they should have the prior approval of the City Engineer to those buildings or alterations evidenced by his permit and to make the erection or repair of such buildings without such prior permit a misdemeanor punishable by fine and imprisonment. The power of the city to order an inspection, through the City Engineer, of the buildings and alterations after they are made, or as they are in progress, is not denied, nor is the liability of the owner to have civil proceedings taken against him, to compel him to conform to the regulations of the city on the subject of structures. What is denied is that the right springing from ownership to build structures upon one’s premises, or to make alterations upon the same, can be made to be held in abeyance by and subordinated to the prior consent of a city official under penalty of a criminal prosecution. Defendant affirms that property rights are arbitrarily, unreasonably and illegally hampered by an ordinance which substantially creates a tribunal from whose decision in the premises no legal method of review has been provided, and which would force owners into affirmative, active, legal proceedings, in order to exercise rights which should be free and untrammeled, unless and until actually exercised or attempted to be exercised in violation of law. They contend that while it may be perfectly legitimate for the city to pass regulations on the subject of certain buildings within its borders, and devolve upon a particular officer the duty of seeing that the regulations made by the city are conformed to, his duty could not be made to extend beyond ascertaining whether buildingsi or alterations thereto, or proposed to be made, would be in violation of ordinances, or those actually erected were so violative, and to instituting civil legal proceedings against the parties, either by way of prevention or remedy. — 453 — He contends that the city has no ' authority to appoint a city official and to delegate to him the power of primarily determining whether the owners of property should be permitted to exercise their property rights or not under penalty of a criminal prosecution. We have reached the conclusion in this case that the ordinance in question in so far as it seeks to create as a misdemeanor the erection by an owner of a building upon his property without having first obtained a certificate of approval or permit of the City Engineer, and to subject the owner, in case of conviction of violation of the prohibition of the ordinance, to fine and imprisonment, can not be sustained. We have examined, as we have said, the charter of the city and have failed to discover in it anything which would tend to show any delegation of .the right to impose, through criminal proceedings, a fine or imprisonment upon an owner of property for non-compliance with an ordinance requiring him to postpone the erection of a building upon his premises until he had obtained the consent of gthe Oity Engineer to the building proposed to be erected (as being in conformity to the city regulations), and obtained a certificate or permit from that officer. In State vs. Bright, 38 An. 4, we declared that it was acknowledged by text writers and supported by abundant authorities that a municipal corporation had no right to enforce obedience to the ordinances which it has the power to pass, by fine or imprisonment, or other penalty, unless that right has been unquestionably conferred by the lawgiver; for this is inflicting a punishment for the commission or omission of an act declared an offence, a prerogative, which, as a rule, appertains to the sovereign alone (citing Dillon, par. 336, p. 553, Desty on Tax., p. 765), and that the words “shall provide for the punishment of any violation of such ordinances or-regulations by fine or imprisonment,” found in Sec. 7, referred to ordinances which the Common Council was authorized to pass and have executed as might be necessary and proper to preserve the peace and good order of the city and to maintain its cleanliness and health. This decision was in line with the eases, 6 An. 515 (Municipality vs. Pance), State vs. Manessier (Opinion Book 53, p. 237), and 34 An. 750 (State vs. Patamia). The ninth section of the charter of the city authorizes it “ to regulate the safety, height and thickness of the walls and structures.” The ordinance we are considering was passed, presumably under — 454 — that grant of power, but the council, after laying down in the ordinance specific directions as to what constitutes safe building, made the erection of buildings in contravention of these provisions a misdemeanor which would subject parties contravening the same to liability to fine and imprisonment, and created as a misdemeanor “ the erection of buildings without having first obtained the approval and permit of the City Engineer.” Under the ordinance a person erecting a building in strict conformity to what the council had laid down as the rules of safety governing structure would, none the less, be subject to fine and imprisonment — his offence being not a violation of the rules themselves of safety, but of the violation of a rule which the council thought proper to establishin supposed incidental aid of the observance of the rules. We do not think the city has the authority to enforce criminally this obligation incidentally imposed upon property owners by fine and imprisonment for non-observance of the same. , Ownership gives the right to one to enjoy and to dispose of one’s property in the most unlimited manner, provided it be not used in any way prohibited bylaws or ordinances. (C. C. 491.) So long as an owner does not use his property in a way prohibited by law or statute, he is free to act. The city of New Orleans had no authority to hamper it and make its exercise depend upon a prior permit or consent of the City Engineer under penalty of criminal prosecutien. There are ample adequate, legal remedies open to the city for the enforcement of the city rules. Opposition may be made to every species of new work from which injury is apprehended. Parties insisting upon erecting illegal or improper structures may have their work suspended by order of court if necessary. Works done in spite of opposition may be destroyed in proper cases and matters replaced in the former situation. The method selected by the council for enforcing their ordinance by subjecting property owners to a criminal liability to fine and imprisonment for the mere fact of building upon their own premises, without the prior consent and permit of the city, is, in our opinion, not only arbitrary and unreasonable, but the city is without authority to adopt it. It fetters the rights of ownership in an unwarranted degree. It is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and re — 455 — versed; and it is now ordered, adjudged and decreed that the prosecution be dismissed.