No. 10,730 Precedential Processed

State v. Mahner

Louisiana Supreme Court · Filed April 15, 1891 · 43 La. Ann. 496

Cited by

Hourgette v. City of Gretna 137 So. 344 La. Ct. App. 1st Cir. 1931
State Ex Rel. Dickson v. Harrison 108 So. 421 La. 1926
City of New Orleans v. Canal Bakery & Delicatessen 3 La. App. 18 La. Ct. App. 1st Cir. 1925
State v. Carter 105 So. 247 La. 1925
City of Shreveport v. Herndon 105 So. 244 La. 1925
City of New Orleans v. Palmisano 83 So. 789 La. 1920
City of New Orleans v. Murat 44 So. 898 La. 1907
State ex rel. Galle v. City of New Orleans 36 So. 999 La. 1904

Opinion text

On Application roe Reheaeing. . The City Attorney asks for a rehearing in this case. In the brief for the rehearing the City Attorney says: “ But should your Honors determine that the question involved herein is to be determined upon a possible instead of an actual case, we respectfully submit that your Honors’ decree should go no further than to declare null the clause providing for previous permission from the City Council.” We can not conceive of a more actual case for determination than one wherein the defendant has been tried, convicted and sentenced for the violation of the ordinance under consideration. The ordinance made it an offence for keeping a dairy within prohibited limits without permission from the City Council. We did not consider the right or power of the City to prohibit dairies within the City limits. This power is undoubted, when exercised in the interest of the public health. • We distinctly asserted in the opinion that this ordinance was not enacted in the interest of public health. The permission to keep dairies within the limits, we said, negatived this view. It is true that a portion of an ordinance may be objectionable and *500 the other portions may be good, and in such cases that which is good remains. What was the offence denounced in the ordinance? Keeping a dairy within certain,prohibited limits without permission. Dairies were prohibited within certain limits without the permission of the City Council. The City Council could, under the ordinance, permit as many dairies as they desired within the prohibited limits. As stated, the offence is keeping a dairy without permission. Strike this out and there would be no penalty. Therefore the permissive part of the ordinance was an essential and connected part of it, without which it would be only a prohibition. To declare the permissive part void, and to state that the penalty should remain, would be, on our part, legislation. It would be amending and reénaeting the ordinance. This is the business of the City Council.