Doll v. Flintkote Co.

HAMITER, Justice.

Emile M. Doll, the owner of certain property fronting on Poland Avenue in the - City of New Orleans, brought this suit against The Fiintkote Co. and the named municipality to obtain a declaratory judgment decreeing to be null and void an exchange of property made by and between the defendants, as well as Municipal Ordinance No. 18,706 C.C.S. which purported to authorize the exchange. (In the transaction the city conveyed to the company that stretch of Poland Avenue running alongside a square of ground adjacent to the one in which plaintiff’s property is located.)

In the petition plaintiff avers that the act of exchange is invalid because the authorizing ordinance was null, it not having been legally adopted. His attack on the ordinance is based on an alleged noncompliance with Section 8 of the Charter of the City of New Orleans, Act 159 of 1912 as amended by Act 378 of 1948, which provides:

“The Commission Council shall also have power:

“Public Streets

“(1) To order the ditching, filling, opening, widening, and paving of the public streets, and to regulate the grade thereof, and, by a two-thirds vote to sell or change the destination of any street, * * (Italics ours.)

Plaintiff contends that the two-thirds vote referred to in the quoted provisions means two-thirds of the elected members of the council (or two-thirds of eight which would be six), not two-thirds of a quorum as contended by the defendants; and that since only five members voted to authorize the exchange the requirements of Section 8 were not met.

The district court maintained an exception of no cause of action filed by defendants and its ruling was affirmed by the Court of Appeal of the Orleans Circuit, 79 So.2d 575, those courts having been of the opinion that the pertinent provision of Section 8 means two-thirds of a quorum (with a minimum of five). We granted the writ of certiorari to review the decision of the Court of Appeal.

Pretermitting the question of the correctness of the reasons assigned by the district court and the Court of Appeal for maintaining the exception of no cause of action and dismissing the suit we are compelled to affirm their decrees on another ground.

Our examination of the record before us discloses that the ordinance attacked was not made a part of the petition or attached thereto, nor was it introduced in any manner in the proceedings in the district court. It is a well settled principle of law that we cannot take judicial cognizance of municipal ordinances.

In State ex rel. Hourguettes v. City of Gretna, 194 La. 460, 193 So. 706, 709, which presented a similar situation (plaintiff’s petition asserting the invalidity of •a municipal ordinance had been dismissed on an exception of no cause of action and the ordinance attacked had not been made a part of the record), we said in affirming the district court’s judgment: “As neither Ordinance- No. 593 of the City of Gretna, nor any 'other ordinance of that City relative to the issuance of permits for a dance hall, is in evidence before this court, and as this court cannot take judicial cognizance of municipal ordinances, it is not possible for the court to determine that any one of the ordinances of the City of Gretna is unconstitutional on the grounds assigned by relator in his petition filed in this case. The general allegations in relator’s petition as to the unconstitutionality of the ordinances of the City of Gretna, relative to the issuance of permits for a dance hall, are therefore mere conclusions of law and not well-pleaded facts, which may be taken as true, in disposing of the exception of no cause of action tendered by respondents in this case.” See also State ex rel. Cotonio v. Judge of Criminal District Court, Parish of Orleans, Section B, 105 La. 758, 30 So. 105; City of New Orleans v. Mangiarisina, 139 La. 605, 71 So. 886; City of New Orleans v. Calamari, 150 La. 737, 91 So. 172, 22 A.L.R. 106; and Valenti v. Oster Bros. Carriage & Wagon Manufacturing Company, 154 La. 991, 98 So. 553.

For the reasons assigned the judgments of the district court and Court of Appeal are affirmed. Plaintiff shall pay all costs.