# Petition for Writ of Certiorari — Degelos Bros. Grain Corp. v. City of New Orleans > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1276%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1966 - **Citation:** 384 U.S. 905 ## Text Office-Supreme Court, us. | FILED 2 JOHIN F. DAWS, CLERK f Supreme Court of the United States OCTOBER TERM, 1965 . ies 10 50 | a DEGELOS BROS. GRAIN CORPORATION, Petitioner, versus CITY OF NEW ORLEANS AND HEALTH DEPARTMENT CITY OF NEW ORLEANS, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF LOUISIANA HENICAN, JAMES & ‘ CLEVELAND MURRAY F. CLEVELAND 225 Baronne Street, Suite 2601 New Orleans, Louisiana 70112 Attorneys for Petitioner A. B. D. SF. _ INDEX OPINIONS BELOW ...... eee hee 5 RR ee JURISDICTION ......... AA ADOT QUESTIONS PRESENTED .................. CONSTITUTIONAL PROVISIONS and ORDI- po Bt 5s 3 > Rn ar ea STATEMENT OF THE CASE RE 1) 2) 3) 4) 5) 6) 7) - 8) Original Petition in State Proceedings Original Answer Raising Federal Question State Court Injunction 3 Suspensive Appeal to Louisiana Court of . Appeal, Fourth Circuit, Opinion and De- cree Application for Rehearing Refused Application to Supreme Court -of Louisiana for Writ of Certiorari or Review | Stay Order Issued by ns a aaa Court of Louisiana Extension of Time by Supreme Court of the United States for Filing this Petition for Writ of Certiorari REASONS FOR GRANTING THE WRIT, ARGUMENT, AND AUTHORITIES .......... G. CONCLUSION ........ eas ee 1 Rar I 7 a Page APPENDIX A ORIGINAL PETITION, AN- SWER, JUDGMENT AND A | ; REASONS FOR JUDGMENT OF TRIAL COURT .......... APPENDIX B OPINION AND DECREE OF LOUISIANA COURT OF AP- _PEAL, FOURTH ‘CIRCUIT .. NDIX C. ~ DECREE OF SUPREME COURT OF LOUISIANA DE- NYING WRIT OF CERTIO- RARI OR REVIEW ....°..... AUTHORITIES: CASES: Allen v. Albright, 151 So. (2d) 554 .......... ee Amacker v. Amacker, 146 So. (2d) 672 ........ Cooley v. Meridian Lumber Co., 195 La. 631, 197 Se ee rr rey Py ee Pre Feb ee eens ie. Crump v. Carnahan, 155 La. 648, 99 So. 493 ...... _ Galouye v. A. R. Blossman, Inc., 32 So. (2d) Hobson v. Walker, 41 So. (2d) 789.............. LeBlanc v. Orleans Ice Manufacturing Co., 121. ie | Se Beer ee rr Lewis v. Behan Thorn & Co., 28 La. Ann. 130 .. Meyer v. Kemper Ice Co., Inc., 180 La. saul 158 8 UME g go os Woetn te eae he rene : | ae 15 43 50 Ill se AUTHORITIES (Continued) te a Page Morris v. Putsman, 166 La. 14, 116 So. 557... 12 y Woods v. Turbeville, 168 So. (2d) 915 .......... 11 CONSTITUTIONAL PROVISIONS: Constitution of the United States of America Amendment| XIV, Section 1....... ey ee 4 ORDINANCE: ein Ordinance No. 828 M C S (The Code of the City of New Orleans), Section 29-10 .....°........ 4. MISCELLANEOUS: _ 28 American Jurisprudence, p. 519, et seq., “In- junctions,’’, Section 29 ............... irae 12 ? f Louisiana Code of Civil Procedure, Article eee ee acs .. Louisiana Civil Code Asticles 666, 667, 668 and Ae GS PFS gs aoe aia ea pe eae Oy 11 * . IN THE — z SUPREME COURT OF THE UNITED STATES ' ~October Term, 1965 5 ek eae ae No. } DEGELOS BROS. GRAIN CORPORATION, . Petitioner, versus CITY OF NEW ORLEANS AND HEALTH DEPARTMENT CITY OF NEW ORLEANS, ‘ f “Respondent. R ° ‘PETITION BOR om OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF LOUISIANA. | ’ TO THE HONORABLE SUPREME COURT OF THE UNITED STATES OF AMERICA AND THE CHIEF JUSTICE AND ASSOCIATE JUSTICES THEREOF: Degelos Bros. Grain ‘Cerporation seeks a writ of certiorari to review. a final decree of the Supreme Court of Louisiana rendered September 30, 1965, re- fusing to grant a writ of certiorari or review to the Court of Appeal, Fourth Circuit, State of Louisiana, _ and in connection therewith, respectfully submits the following: A. OPINIONS BELOW The decree of the Supreme Court of Louisiana (Ap- pendix C, infra p. ) has not been reported, The stated reason for refusing to grant a writ of certiorari or re- pe . ¢ t &- .view of the Louisiana Fourth Circuit Court of Appeal was: “No error of law under the facts found ‘by the Court of Appeal”. | “The opinion pa decree of the Louisiana Court of Appeal, Fourth Circuit (Appendix B, p. 43) have not as 5 yet been published. The judgment of the Civil District Court and the Reasons fur Judgment (Appendix A p._29) “have not been pens: : -B. JURISDICTION _ aes | a) ‘The abovementioned final decree of the Supreme Court was entered on September 30, 1965, the day of rendition. | on , ; é b) No rehearing was applied for as none is permitted by Louisiana law or practice where a writ of cer- tiorari or review has been refused. c) On December 28, 1965, an order was rendered by Mr. Justice William J. Brennan, Jr., extending the time for filing a petition for writ of certiorari to and including February 23, 1966. d) The jurisdiction of this Court is invoked under 28 U. S. Code, Sec. 1257 (3), because the ordinance upon which the proceedings below were based is repugnant to the Constitution of the United States, as such ordinance is written and/or as it has been construed and applied in this case. 3 C. QUESTIONS FOR REVIEW ™ ‘fhe questions presehted for review are: ° | @) Cana municipal ordinance which is by its own : terms effective only where injuries to health are. involved be used as a basis for an injunction to close a legitimate business operation where the - record shows, the plaintiff finally concedes, and the - courts have held that 7 rey HAZARD IS” b) INVOLVED? Should operation of a lawful business in a heavily industrialized area be enjoined where it gives no serious or material discomfort or inconvenience to the persons living in the area, and where equal protection is denied by permitting other plants to operate in the same area under the same ordi- nance? -Can such a business operation be enjoined on a basis of testimony of persons who are admittedly in ill health, so as to be unusually susceptible to odors ‘of any kind, or is the test rather a question of d) whether the conditions are ‘of such a nature as to produce discomfort and annoyance to the ordjnary sensibilities of pormal perd@ns? Should a. i who may well be himself unusually susceptible to odors, and who cannot be subjected to cross examination, be permitted to base his judgment upon his own personal and subjective reaction to an odor and, in effect disre- gard the overwhelming preponderance of the evi- ceqe’ : ay » & tn (R * FP YL . ee ee ay ee jes Ca Cite tA 4 e€) Does the injunction issued in this case deprive peti- tioner of the right to use its property without due process of law, and deny it the equal protection guaranteed by the Fourteenth Amendment? D. CCNSTITUTIONAL PROVISIONS and ORDINANCE INVOLVED — The provision of the Constitution of the United States involved in this case’ is Amendment XIV reading, in pertinent part, as follows: “Section 1, * * * No State shall make or en- force any law which shall abridge the priv- ileges or immunities of citizens of the United States; ‘nor shall any State deprive any per- son of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the. laws.’ The Ordinance involved is Ordinance No. 828 MCS (The Code of the City of New Orleans), Section 29-10, reading as follows: “Section 29-10. Substances deleterious to health not to be kept in city. No distiller, brewer, keeper of any workshop, manufactory or laboratory, warehousekeeper or owner, soap-boiler, chandler or other per- son shall have, keep, use, produce or store, within the city, foul, fetid, putrid or offensive or injurious matters, substances, odors or va- oO 4) pors liable to injure health and on complaint of the Department of Health, unless the evil com- plained of be at once discontinued, the Direc- tor of Health shall order such places to be forthwith closed and such business stopped} the ntinuance of which is liable to injure health.”’ emphasis added). E. STATEMENT OF THE CASE The City of New Orleans and the Health Depart- ment, City of New Orleans sought an injunction to en- join the operation of a grain dehydrating plant op- * erated by Degelos Bros. Grain Corporation in a irl oly industrialized area near the Mississippi River wa front in New Orleans. The entire operation consists of the removal of moisturefrom grains; no chemicals are used; nothing is manufactured; and the only feature of the operation found objectionable is an odor detect- able under certain conditions of wind direction, tem- perature, humidity, etc. The odor was described by most of the witnesses (for both sides) as a “popcorn” odor. On the other hand, the plaintiffs based their peti- tion for an injunction upon a City Ordinance which pro- hibits the production or storing of ‘‘foul, fetid, putrid or offensive or injurious matters, substances, odors or vapors LIABLE TO INJURE HEALTH”. After a trial on the merits, where the testimony of numerous lay and expert witnesses was heard, it was determined, and counsel for the City of New Orleans and its Health Department CONCEDED that the op- erations of the plant NOT produce smoke, dust, poisonous or toxic fumes, noise, vibration or objection- able features of any kind. In short it is now clear, and 6 the etter Courts have found, that no health hazard whatsoever is involved in this litigation. The trial» reached his own private, personal opinion that the. plant emitted an odor which he did not like. He‘was | not subject to cross examination, of course, on his own | judge visited the plant and the arch unusual susceptibility, or on any other point of de- fense. The injunction was sought on allegations that serious and irreparable damage was being caused. On the con- trary, it is most significant that the trial judge allowed 45 days after the date of the judgment before it became effective. Thereafter, he exercised his discretion in allowing a suspensive appeal on a $250.00 appeal bond. And the Supreme Court of Louisiana has granted and extended a stay order during the pendency of this ap- plication. It is clear, therefore, that no Louisiana Court Fai that the health of its citizens is in eeeperey. Petitioner’s principal stockholders have/a lifetime of experience and their life savings: invested in a plant which is located in an area zoned for heavy, industrial use in the midst of the bustling waterfront activities of one of the nation’s most active seaports. It is obvious to anyone familiar with these proceed- gs from their inception that a tremendous amount of int was applied to certain officials in the muni- cipal government of the City of New Orleans by a few militant and extremely aggressive women in the im- mediate neighborhood of the plant operated by peti- tioner, virtually all of whom admitted under cross ex- amination that they, or members: of their immediate family, were unusually susceptible to odors of all kinds. o 7 It is equally clear that the City authorities ‘succumbed to this pressure and instructed the City attorney to file these proceedings, and that political opportunists then distributed circulars throughout the neighborhood in an effort to capitalize on this situation, to gain votes for themselves. Similarly, it is evident that, after hearing all of the evidence, the trial judge concluded that all parties would be satisfied with a ‘““compromise’’ judg- ment granting the injunction, but allowing Degelos Bros. Grain Corporation 45 days within which to elim- inate all Sdors from their plant operations. Unfor- tunately, it has been impossible, despite substantial expenditures, to eliminate every trace of odor, just as it would undoubtedly be impossible for a bakery or a coffee roaster to rid itself of all odors. The’ compromise nature of the judgment and the absence of real injury to any complaining neighbors is further emphasized by the action of the trial judge in granting. a suspensive appeal, requiring an appeal bond of only $250.00., as pointed out above. , ; —— in ws Th¢ Court of Appeal for the Parish of Orleans made 4 ~ Pu - 3 serious error in-stating (page 5 of its opinion, Appen- dix B p. 48) that “‘it is conceded that there are methods whereby the odors may be eliminated by defendant’”’. There is absolutely nothing im the record in any court to support this erroneous statement and conclusion of the Court of Appeal, which undoubtedly served as the premise for its denial of relief. 5 The Federal quesiions sought to be reviewed were raised by Degelos Bros. Grain Corporation, the de- fendant in the injunction proceedings filed in the Civil District Court for the Parish of Orleans, in Article XI of the original answer, reading as follows: \s 8 ‘“‘Deféndant has incurred substantial obliga- tions with local banks and other parties in con- nection with the acquisition, installation and operation of its plant; and the granting of the injunction sought herein would destroy defend- ant’s business and would deprive defendant of its rights to equal protection and due process under the Constitutions of the State of Louisi- ana and the United States of America (em- phasis added). In deciding to grant an injunction, effective 45 days after rendition of judgment, the trial judge made no reference, either in the judgment or in the reasons for judgment to these constitutional issues. ~The basis for - the decision of the trial court is to be found in that portion of the reasons for judgment entitled ‘‘Opinion’”’ where Judge Carriere pointed out that ‘‘* * * the de- fendant is in good faith and has on order, with the Buffalo Forge Company, certain equipment which is due to arrive in New Orleans on June 5, 1964, and which in all probability will solve the problem.” (Ap- pendix A, p. 42) In injunction proceedings, the law of Louisiana gives the trial judge a discretionary right to grant or deny a suspensive appeal. The trial judge granted a suspen- sive appeal upon a nominal bond of $250.00. (Appendix A, p. 29) 3 These constitutional issues were raised in the Court of Appeal for the Fourth Circuit, State of Louisiana by making part of the record on appeal a complete .copy of the answer filed in the lower court, including para- graph XI, quoted above. 9 The Court of Appeal disposed of this issue as follows: ‘“‘(Defendant-Appellant’s contention that the is- suance of an injunction closing its plant would unfairly cause defendant tremendous finan- cial loss and would deprive it of its right to equal protection and due process of law is without merit.”’ (Appendix B p. 48) The Court of Appeal denied a rehearing, without as- signing any reasons. These. constitutio al issues were presented to the Louisiana deans Quurt by attaching to the Applica- tion for a Writ of Certiorari or Review a complete copy of the answer filed #2 the court below, including ’ paragraph XI, quoted above. The Supreme Court of Louisiana did not pass upen these issues. It simply re- fused to grant a writ, stating ‘No error of law under the facts found by the Court of Appeal’. (Appendix. C p. 50) On October 25, 1965 the Supreme Court of Louisiana granted a 60 day Stay Order pending application to the Supreme Court of the United States(for a Writ of Cer- tiorari and on December 23rd, 1965 this Stay Order was extended through February 23, 1966. On December 28th, 1965, Mr. Justice Brennan, Jr. signed an Order extending the time for filing a peti- tion for a writ of certiorari in this Court to and in- . cluding February 23, 1966. ™y Se | 10 F. REASONS FOR GRANTING THE WRIT, ARGU- MENT, AND AUTHORITIES The reasons for granting the writ in this case are as ¢ follows: 1. The ordinance upon which the petition in the lower court was based is clearly limited to a case where the activity or odor complained of is injurious to health. The record shows, and during the course of the trial counsel for the City of New Orleans and its Health Department admitted in open court, that the operation of defendant's plant involves only a question of odor and does not involve anything in- jurious to health. Experts testifying for Degelos Bros. Grain Corporation stated unequivocally that no health problem whatsoever is involved. This fact was found by the trial judge and his findings were affirmed by the Court of Appeal. Accordingly the interpretation and applcation of the City Ordi- nance which resulted in the issuance of an injunc- tion against petitioner violates its constitutional rights by denying it due process and equal protec- tion of the laws. Numerous other plants in the im- mediate vicinity of petitioner’s plant are emitting odors of all kinds, as clearly reflected by the rec- ord; and it is grossly unfair and unconstitutional to deny petitioner the right to operate plant merely upon the basis of the testimony of/a few neighbors who were unusually susceptible to odors © of all kinds, and who were incited by political op- portunists. | ) The area in which defendant’s plant is located is zoned for heavy industrial use and is situated along ‘as the Mississippi River waterfront, in the midst of manufacturing plants, factories, railroads, ship- ping, and numerous other activities, all of which produce odors of one kind or another. 3. Petitioner and its stockholders have invested con- siderable sums of money and years of experience in the plant which is the subject of this litigation; and, unless a writ is granted and the injunction set aside, substantial and irreparable injury will re- ' sult to petitioner and its stockholders. 4. Although the injunction is couched in terms whica purport to allow petitioner time to completely elim- inate all odors, it has been impossible to ac- complish this result, despite the expenditure of | tremendous sums of money for engineering, ma- chinery, ‘equipment, and expert advice. In much the same way it would be impossible for a bakery ‘or coffee roasting plant to eliminate all traces of “odor. _- §. Any individual who is actually damaged by the ‘popcorn odor” allegedly emitted from petition- er’s plant would have an adequate remedy by fil- ing an individupl suit for damages. AUTHORITIES: A person is entitled¢to use his own property in any’ way he sees fit so long as he does not violate any posi- tive law or abuse his privilege by unduly interfering with the rights of his neighbor. Louisiana Civil Coda Articles 666, 667, 668 and 669; Woods v. Turbeville, 168 Sol 2 915; Allen v. Albright, 151 So. (2d) 554. ene Bircinkiicasaceivat Patines sort aeatil . . ANS eR me 38 Ngati earth 2 12 A lawful business cannot‘be abated as a nuisance un- less the business is operated in such a way as to give serious and material discomfort and inconvenience to those living in close proximity thereto. Galouye v. A. R. ‘Blossman, Inc., 32 So. (2d) 90. a \ In order to Constitute a nuisance the use of property must be of such character and to such an unreasonable _degree as to produce actual discomfort and annoyance to the ordinary sensibilities of a normal person. Woods v. Turbeville, supra; Hobson v. Walker, 41 So. (2d) ‘ 789; Meyer v. Kemper Ice Co., Inc., 180 La. 1037, 158 So. 378; Morris v. Putsman, 166 La. 14, 116. So. 557; LeBlanc v. Orleans Ice Manufacturing Co., 121 La. 250, 46 So. 226; Lewis v. Behan Thorn & Co.; 28 La. Ann. 130; Crump »v. Carnahan, 155 La. 648, 99 So. 493. A writ of injunction is properly issued in a case of this kind only when the plaintiff proves that irreparable in-- jury, loss or damage may otherwise result. Article 3601, Louisiana Code of Civil Procedure; 28 American Jurisprudence, p. 519, et -seq., “‘Injunctions,”’ Sectioni ' 29; Cooley v. Meridian Lumber Co., 195 La. 631, 197 So. 2585; Amacker v. Amacker, 146 So. (2d) 672. G. CONCLUSION A tenianed by the standards to which sida Sulit is accustomed, the present case may seem insignificant. However, igure of a million dollars invested in a plant, plus experience over a period of at least two generations, is of vital importance to petitioner and its stockholders. The Louisiana Courts have deprived peti- tioner of its rights of due process and equal protection guaranteed by the United States Constitution, partic» _ P — 13 ularly in view of the fact that the basis for thesg; pro- ceedings was a Municipal Ordinance expressly limited to conditions INJURIOUS TO HEALTH, whereas the City of New Orleans and its Health Department aban- doned in the lower court all contentions that a health problem is involved in the present litigation. | A great deal more harm can be dor to petitioner by denying it a right to operaté than can possibly result «° from permitting it to operate in a thriving seaport” and manufacturing center such was the City of New Orleans. Accordingly, a writ of certiorari should issue. _ to the Supreme Court of the State of Louisiana and, in due course,*the judgment of the lower court should be set aside. . E Respectfully submitted, : ? ses 7 - HENICAN, JAMES & be CLEVELAND” -._ : _ MURRAY F. CLEVELAND. “~Suyite 2601, 225 Baronne Street New Orleans, Louisiana 70112 Attorneys for Petitioner 2? cS BR, 14 CERTIFICATE OF SERVICE ‘I, MURRAY F. CLEVELAND, hereby certify that a’ ’ . copy of the foregoing petition for a writ of ‘certiorari has been served upon Alvin J. Liska, counsel of record in the’Lower Court for the.City of New Orleans and | Health Department, City of New Orleans, by forward- ing same to him at his correct post office address in . the City of New Orleans by U. S. Mail, postage prepaid, and deposited in the Post Office in New Orleans, Louisi- ana on this day of February, 1966. MURRAY F. CLEVELAND, Counsel of Record for Petitioner — 15 APPENDIX “A” - / vd CIVIL DISTRICT COURT FOR THE PARISH OF @RLEANS STATE OF LOUISIANA ~ NO. 417-595 DIVISION “ ” DOCKET: 5 CITY OF NEW ORLEANS AND ‘HEALTH DEPARTMENT, CITY OF NEW ORLEANS — VERSUS ‘DEGELOS BROS. GRAIN CORP. Filed: Nov. 20, 1963 (Signed) A. COPPERSMITH Deputy Clerk see PETITION FOR INJUNCTION The joint petition of: (1) THE CITY OF NEW ORLEANS, appearing herein through HON. VICTOR H. SCHIRO, its Mayor, and | 2), THE HEALTH DEPARTMENT, City of New Orleans, herein appearing through RODNEY C. JUNG, its Director, and through ALVIN J. LISKA, ‘City Attorney, and LEONARD A. CALCAGNO, Assis- f > * eo UAE x Bpbeled Ope ee 16 tant City Attorney and trial attorney herein, respect- fully represents that: I. Defendant herein, DEGELOS BROS. GRAIN COR- PORATION, hereinafter referred to simply as ‘“‘DE- GELOS”’, is a corporation organized under and pursu- ant to the laws of the State of Louisiana. DEGELOS has its principal place of business at the foot of Na- poleon Street, near the Mississippi River, in the gen- eral area of thé 4700 block of Tchoupitoulas Street in this City. ve a | II. DEGELOS possesses, controls and operates, through its. officers, agents and/or employees a dehydrating plant at its place of business, described ‘in Article I above, which plant consists primarily of one or more rotary kilns which are heated by extremely hot gases, which are created by the burning of natural gas in the said plant. ITI. a The said plant has been operated by DEGELOS since approximately the early part of January of 1963. ee IV. | of ee DEGELOS obtains from various breweries in this City their used, spent, refuse and sour mash, which consist of organic substances composed of rice, bar- ley and other organic matter used for the manufac- ture of beer. The said organic substances are then i i 17 placed inthe said rotary kiln, which is then heated to extreme temperature in ‘order to remove most of the water from said substances. DEGELOS operates said plant day and night. After the said organic substances are dehydrated the residue is sold for use in the manu- facture of feed for livestock. V. As a result of the heating of the said organic sub- ‘ stances DEGELOS has caused, is causing and will \ cause the infiltration, of obnoxious, vile, unbearably stinking, irritating and nauseous odors into the atmos- phere in an area of more than a nine city blocks radius _ #rom its plant, in which area citizens of this commyp- “nity have their dwellings, live and reside. The said creation of said odors and smoke constitute a nuisance in fact and in law. eae = 9 wry - VI. a ‘| The said obnoxious, vile, stinking, irritating and nauseous odors, ‘aforesaid, have deprived, is depriv- ing and will deprive the following named citizens, in particular; but not exclusively, of the peaceable use and enjoyment of their homes and yards: (18 Mrs. William Myers, 5218 Laurel Street (2) Mrs. Theresa Gennusa, 5230 Laurel Street (3) Mrs. William Borgstede, 515 Lyons Street (4) Mrs. William Kirsch, 607 Bordeaux Street (5) Mr. Clyde McDaniel, 608°U pperline (6) Mr. P. Gros, 4857 Tchoupitoulas Street - (7) Mrs. Samuel Boudreaux, 4737 ‘Tchoupitoulas — »% 18 (8) Mrs. Alvin J. Duvalle, 4719 Tchoupitoulas Street (9) Mrs. Charles Manson, 725 Napoleon Street ~ (10) Mrs. Thomas Haslauer, 604 Valence Street (11) Mrs. W. R. Fontenelte, 513 Lyons Street (12) Mrs. Alfred Gaudin, 4813 Tchoupitoulas Street (13) Mrs. Elroy Merz, 4721 Tchoupitoulas Street (14) Mrs. A. Williams; 609 Bordeaux Street (15) Mrs. F. Roccaforte, 4737-Laurel Street (16) Mr. A. E. Hayes, 724 Marengo Street (17) Mr. Philip Fisher, Sr., 4113-Tchoupitoulas Street VII. Because DEGELOS operates its said dehydrating plant day and night and the said citizens, in particular, _ but not exclusively, are deprived by the said operation of their right to the peaceable enjoyment and use of their yards during the day or to sit out evenings upon their porches and/or steps, or use their window fans or open their windows without being annoyed, molest- ed or interferred with dnd disturbed by the said ob- noxious, vile, stinking, irritating and nauseous odors. The deprivation of the right of the citizens mentioned in Article VI above, to the peaceable use, possession and enjoyment of their property by the creation of the said odors and smoke by DEGELOS constitutes: a public nuisance and will cause the said citizens and this community irreparable damage unless a rule nisi issue herein, ordering DEGELOS to show cause, on a day and at a time to be set by this Honorable Court why a preliminary injunction should not issue herein ordering and enjoining the said DEGELOS, its offi- cers, agents, and/or employees from creating the said obnoxious, vile, stinking, irritating and nauseous odors and nuisance. ' és 19 VItl. On May 17, 1963 a notice to cease and desist from creating the above des¢ribed nuisance was issued to DEGELOS. In spite of said notice to cease and desist - DEGELOS has continued to the present, to create said nuisance in the manner described. TX. In the alternative, petitiofiers reaver the allegations contained in the foregoing paragraphs, Articles I through VII, inclusive, and aver further that the cre- ation of the said odors and smoke constitute a nui- sance per se in that it is violative of Municipal Ordi- nance 828 M C S, Section 29-10, which provides as follows: a No distiller; brewer, keeper of ‘any workshop, manufactory or laboratory, warehousekeeper or own- 7s er, soap-boiler, chandler or other person shali have, keep, use, produce or store, within the city, foul, fetid, putrid or offensive or ‘injurious matters, substances, odors, or vapors liable to injure health and on com- plaint of the Department of Health, unless the evil complained of be at, once discontinued, the Director of Health shall order such places to be forthwith closed and such business stopped, the continuance of which is liable to injure health. | The creation of said odors and smoke is detrimen- tal and injuriousto the citizens of this City of New Or- leans, especially to the citizens who own property or reside in the immediate vicinity of the dehydrating plant hereinaboye described-in Articles I and II, and 20 the City of New Orleans is without any adequate rem- edy at law, and therefore, it is necessary that an in- junction issue herein, prohibiting and enjoining the said’ officers, agents and/or employees of the DE- GELOS from ‘operating the said plant in any manner which will create, or cause to be created obnoxious, ~vile, stinking, irritating and nauseous odors in the vi- cinity of its plant or anywhere else in the std of New Orleans. — sa \ \ \ 5. x In the further alternative, petitioners allege and aver that the creation of said odors and smoke as de- scribed above is in direct violation of the Municipal . Zoning Law‘ and Ordinance of the City of New Orleans Nd._18,565 C. C. S. and the ordinances amendatory. thereof. The area in which the DEGELOS plant is lo- cated is zoned L-Heavy Industrial. This zoning regu- lation as set forth in the above Ordinance relating to L-Heavy Industrial provides as follows: ae———_ . “Any building or premises may be used for any other purpose not in conflict with any ordinance of the City of New Orleans regulating nuisances.”’ Petitioners reaver that the creation of said odors and smoke as described above specifically violate Municipal Ordinance 828 — Section 29-10 and therefore violates the Municipal Zoning Ordinance of the City of New Orleans as aforesaid. XI. f That the said violations and the nuisances created | (Pc 21 and maintained by defendant constitute public nui- sances which it is the duty of the petitioners to abate and terminate, and which, under its police power and the aforementioned city ordinance must be terminated and abated in the public interest and for the general — public welfare, and that of the residents in the neigh- borhood,:- who together with petitioners are incensed at the continued and flagrant violations in which de- fendant persists as herein set forth despite repeated warnings to cease and desist. : XII. Petitioner has no adequate remedy at law and de- fendant should be prohibited and enjoined from using, maintaining, causing and/or permitting the violations herein described. ; ’ WHEREFORE, petitioners pray that the said DE- GELOS BROS. GRAIN CORPORATION, defendant herein, be duly cited to appear and answer this peti- ion, - rule nisi issue herein, directed to the said DEGELOS BROS. GRAIN CORPORATION to show cause on the day and date to be fixed by this Honorable Court why a preliminary injunction should not issue herein, pro- hibiting and enjoining the said DEGELOS BROS. GRAIN CORPORATION, its officers, agents, and/or ernployees and their successors, from. using its de- hydrating plant as described in Article I and II of the herein petition in any manner which will, create or cause to be created odors which are obnoxious, vile, stinking, irritating and/or ‘nauseous to.the citizens of the City of New Orleans. — : ”- : = : - 3 A . - ~ ~ . « - ° * ee ~ se orese Se bee we wa 7 wore 1 UREA BE 10 in A 22 Petitioners further pray that, after due proceedings had, the said preliminary injunction be perpetuated and that a permanent injunction issue herein to the same effect. And for all general and equitable relief in the premises. co (Signed) ALVIN J. LISKA ALVIN J. LISKA / CITY ATTORNEY TRIAL ATTORNEY: ; ) (Signed) LEONARD A. CALCAGNO “i LEONARD A. CALCAGNO ASSISTANT CITY ATTORNEY ORDER | Let the defendant, DEGELOS BROS. GRAIN COR- PORATION, show cause on the 29th day of Nov., 1963, at .10:30 o’clock in the A.M., why a preliminary injunc- ‘tion should not issue as herein prayed for according to Jaw. New Orleans, Louisiana this 21st day of Nov., 1963. (Signed) OLIVER P. CARRIERE JUDGE : Memo to Civil Sheriff: Serve Defendant: a - Nov. 29, 1963 DEGELOS BROS. GRAIN CORPORATION Through its Proper Agent Cont. 2 wks. CE PRY MEE RET ETON TD A MENA GP TO Re TREY Hi SM ET TO nee 23 e ; AFFIDAVIT STATE OF LOUISIANA PARISH OF ORLEANS BEFORE ME, the undersigned authority, personal- ly came and appeared: Mayor Victor H. Schiro, who, after being duly sworn, deposed and said that he is the Mayor of the City of New Orleans and that he ‘has authorized the preparation and filing of the fore- going petition and suit, and Leonard A.\Calcagno, who, after being duly sworh, deposed and said that he is an Assistant City Attorney for the City of New Orleans; that he prepared and has read the above and - foregoing petition and that the allegations thereof are true and correct to the best of his\knowledge, informa- tion-and belief. _———\——_—__—_—— \ (Signed) MAYOR VICTOR H. SCHIRO : Mayor Victor\H. Schiro . (Signed) LEONARD A. CALCAGNO Leonard A..Calcagno Sworn to and subscribed \ \ \ before me this 20th day of t November 1963. (Signed) (illegible) ‘ Notary Public ‘“ \ Pe sae 24 CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS ‘STATE OF LOUISIANA NO. 417-595 ‘DIVISION ““H”. | DOCKET 5 CITY OF NEW ORLEANS AND HEALTH DEPARTMENT, CITY OF NEW ORLEANS » versus alt DEGELOS BROS. GRAIN CORPORATION, FILED Jan. 31, 1964 ~ @ 10:40 AM (Signed) J. OHLSSON DEPUTY CLERK 3 \eF ANSWER Now into Court comes Degelos Bros. Grain Corpora- tion, defendant, appearing herein with full reservation of all of the rights under the motions and exceptions heretofore filed in these proceedings, and in answer to the petition for injunction filed by plaintiffs, defend- ant denies all and singular the allegations thereof, ex- cept as same may be expressly hereinafter admitted. Further sade a defendant avers: I. The allegations of paragraphs I and III are admit- IT. aie The allegetions of paragraphs Il, IV, V, VI, VII, - VITI, IX, X, XI, — XII are denied. Further answering, defendant avers: TIL Defendant operates a modern and efficient ‘plant lo- | cated at the foot of Napoleon Avenue near the Missis- — ‘sippi River, for the purpose of dehydrating brewers grain~purchased’ from the three breweries operating in the City of New Orleans, using clean, modern and efficient equipment at all times. IV. For many years prior to the commencement of a, fendant’s operations, a similar plant was-operated by . New Orleans Grain and Feed Company in the down- town area of New Orleans, using the same materials and similar equipment; and defendant alleges on in- formation and belief that no action whatever was tak- en by plaintiffs to enjoin such operations. ._ 4 ‘ 4 Vv. The area in which defe t’s operations are con- ducted is zoned for industrial . and defendant’s op- © erations comply in every way with applicable laws and ordinances. ' % & © . health or to private individuals. i * The people living end rking in the. area in which ‘defendant’s plant is located are surrounded by indus- trial and commercial activities of all kinds, includ- ing riverfront movement of trains, ships, and trucks, “all creating certain amounts of smoke, vapor, and odor. More specifically, there are numerous plants and factories in the area surrounding defendant’s . ‘plant, including some located on the West Bank of the © Mississippi River, from which smoke, vapor, and odors reach the neighborhood of Napoleon Avenue and the Mississippi River. ¢ a VII. Defendant expressly denies that any smoke, vapor or odor emitted from its plant is toxic, noxious, nause- ous, or otherwise detrimental or damaging to public - - _ ‘VILL. ot _ Despite the fact that defendant had and has no obli- gation to eliminate’ all traces of odor, smoke, and fumes, frgm its operations, defendant has engaged, at ~ considerable expense, experts, including engineers and chemists, for the purpose of accommodating any _itdividuals. having complaints with respect to the op- eration of defendant’s plant; ‘considerable progress has been made. in completely eliminating all such traces; and defendant is advised by its experts that with additional research, engineering, experiment arid. experience, even further progress can be made; and it is defendant’s intention to continue to work toward . # 27 ~ this end, despite the lack of any legal or other obliga- tion to eliminate all traces of smoke, vapor, and odor. IX. New Orleans is an industrial community, seeking to attract industry and commerce to this area, and de- fendant contributes substantially to the economy of this community by employing personnel; by making substantial, payments to the three breweries operating in New Orlearis; and by selling its products in thig community and in interstate commerce. X. Defendant has contracts with the three breweries operating in the City of New Orleans which require that defendant accept and dispose of the entire pro- ' duction of brewers grain on a continuing daily basis; and if an injunction should be granted in these pro- ceedings, a critical problem would immediately arise with respect to the fulfillment of said contracts and . the disposal of the brewers grain continually produced in large quantities by said breweries; further, not only would a serious financial loss ‘be sustained by the breweries and by defendant, but a serious health prob- lem would also result immediately. eo XI. Defendant has incurred substantial obligations with local banks and other parties in connection with the acquisition, installation and operation of its plant; and the granting of the injunction sought herein would de- stroy defendant’s business and would deprive defend- . re , 28 a F . ‘ ant of its rights to equal protection and due process under the Constitutions of the State of Louisiana and the United States of America. _ WHEREFORE, defendant prays that all of its rights . under the exceptions and motions heretofore filed herein may be reserved; thai this answer may, be deemed: good and sufficient; and that after due pro- ceedings, the petition filed herein may be dismissed at plaintiffs’ cost. : , Defendant further prays for all general and equit- able relief: HENICAN, JAMES & a ae CLEVELAND (Signed) MURRAY F. CLEVELAND Murray F. Cleveland ATTORNEYS FOR DEGELOS BROS. GRAIN CORPORATION, DEFENDANT CERTIFICATE I hereby certify that a copy of the above and fore- going answer has been delivered to Mr. Leonard A. Calcagno, trial attorney for plaintiffs. _ (Signed) MURRAY F. CLEVELAND MURRAY F. CLEVELAND / January 31, 1964 A CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS rm STATEOF LOUISIANA Cs '. CITY OF NEW ORLEANS, AND HEALTH DEPARTMENT, CITY OF NEW ORLEANS 6 : No. 417-595 4 amas DIVISION “H” DOCKET 5 a DEGELOS BROS. GRAIN CORP. | JUDGMENT The rule for a preliminary writ of injunction herein’ filed on November 20, 1963, by the City of New Or- leans and The Health Department, City of New Or- leans, having been heretofore tried, argued and sub- mitted to the Court for adjudication, and for the writ- ten reasons Herein filed and made part of the record: IT IS ORDERED, ADJUDGED AND DECREED that _the said rule be made absolute, and accordingly, that. a preliminary writ of injunction issue herein, prohib- iting and enjoining the said DEGELOS BROS. GRAIN CORPORATION, its officers, agents, and employees and their successors, from using its dehydrating plant in any manner which will create or cause to be creat- ed, rancid, acrid odors which are obnoxious and nause- ous to the citizens of the City of New Orleans. IT IS FURTHER ORDERED, ADJUDGED AND DE- CREED that the above preliminary writ of injunction be held in abeyance for a period of forty-five (45) days from date hereof. | e ) | ae | ae co JUDGMENT READ, RENDERED AND SIGNED IN OPEN COURT ON MAY 28, 1964. > (Signed) OLIVER P. CARRIERE JUDGE CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS STATE OF LOUISIANA NO. 417, 595 DIVISION ‘‘H”’ DOCKET 5 CITY OF NEW ORLEANS AND HEALTH DEPARTMENT, CITY OF NEW ORLEANS VS. ce! (~ DEGELOS BROS. GRAIN CORP. REASONS FOR JUDGMENT | This case presents a very Mea situation. It might well be called ‘‘The case of the oe odor’’. Some witnesses desgribe the odor as “disgusting, sickening, obnoxious,’ awful, smells like burnt pop- corn, burnt bread, burnt rice, burnt meal, burnt man- ure, like old rags burning’’. Other witnesses state that the odor ‘“‘has a chicken gut,smell’’, ‘‘smells like some- thing dead around the house’’, ‘‘smellis like a sewer.”’ On the other hand some witnesses for the.defendant ’ testified that the above described odor is non-existent. Some defense ‘witnesses state that “there is an odor, — @ 9 Me ae . Reece hace insti ame 31 but it is one common to a river-front area, itisacom- — / pound odor that is not obnoxious or toxic’’. Other de- fense witnessess state that ‘‘there is an odor and it smells like roasted chestnu ”; “It is a very pleasant odor, the kind you find in a theatre lobby, a pop-corn odor.” There is even a mystery as to whether the dehydrat- ing plant emits a smoke. Some witnesses state that the smoke ‘‘changes color, it is’ white, yellow, dark brown, tan, grey’’. Other witnesses state that ‘“‘it is not smoke, it is a white vapor or steam’”’. Mf The Court visited the neighborhood and inspeeted the plant with all the parties and counsel at 1:00 P.M. Thursday, May 14, 1964. Further, the Court visited the plant and inspected the area and the neighborhood on the following dates at the approximate times indicated: , ‘1, Tuesday, May 12, 1964. . 5:45 A.M. to 6:15 AM. 2. Tuesday, May 12,1964. 7:20 A.M. to 7:45 A.M. 3. Tuesday, May 13; 1964. . 8:15P.M.to 8:48 P.M. 4. Wednesday, May 13, 1964. 6:00 A.M. to 6:20 A.M. 5. Wednesday, May 13, 1964. 5:30 P.M. to. 6:10 P.M. 6. Thursday, May 14, 1964. © 4:50 A.M. to 5:25 A.M. 7. Thursday, May 14, 1964. . 1:00 P.M. to’ 1:40 P.M. 8. Friday, May 15,1964... 5:15 A.M. to 5:50 A.M. 9. Saturday, May 16,1964... 2:45AM. to 3:15 A.M. 10. Saturday, May 16, 1964. _ 6:00 A.M. to 6:20 A.M. 11. Saturday, May 16, 1964" 10:15 A.M.to 1:30 P.M. 12. Sunday, May 17, 1964... 12:10 P.M. to 12:30 P.M. Sunday, May 17, 1964.%. 10:15 P.M. o 10:25 P.M. -. Monday, May 18, 1964. 5:25 A.M. to. 5:40 A.M. * ¢ me Pa 32 15. Monday, May 18, 1964.... 6:15 P.M. to 6:40 P.M. 16. Tuesday, May 19, 1964... 4:45 A.M. to 5:25 A.M. 17. Tuesday, May 19, 1964... 5:45 P.M. to 6:35 P.M. 18. Tuesday, May 19, 1964... 8:50 P.M.to 9:10 P.M. 19. Wednesday, May 20, 1964. 5:55 A.M. to 6:15 A.M. 20. Wednesday, May 20, 1964.12:35 P.M. to 1:00 P.M. 21. Wednesday, May 20, 1964. 6:20 P.M. to 6:35 P.M. - 22. Wednesday, May 20, 1964.10:25 P.M. to 10:40 P.M. 23. Thursday, May 21, 1964... 5:05 A.M. to 5:25 A.M. 24. Friday, May 22, 1964...... 4:25 A.M.to 4:50 A.M. 25. Friday, May.22 ,1964. ... 5:50 A.M.to 6:05AM. 26. Saturday, May 23, 1964. . §:10 A.M. to 6:45 A.M. 27. Saturday, May 23, 1964... 8:00 A.M. to 8:45 A.M. 28. Saturday, May 23, 1964. .10:40 A.M. to 11:55 A.M. 29. Saturday, May 23, 1964... 1:50 P.M. to 2:35 P.M. 30. Saturday, May 23, 1964... 5:50 P.M. to 6:00 P.M. 31. Sunday, May 24, 1964. ... 9:00 A.M. to 10:00 A.M. LAW 1. “A trial Judge has a perfect right in a proper case such as this to take into consideration his ocular ob- servations made outside the courtroom of the locus in quo or the thing involved in the case, not for the pur- pose of-supplying new evidence, but with the hope of determining where the evidence is conflicting, just what testimony in the record is worthy of belief.’’ Russell v. Bartlett 139 So. (2d) 770. — 2. In action to enjoin es eat from operating its ‘business in such a manner as to constitute a nuisance, ¢ fs é admitting a recording of the various noises emanat- ing from the defendant’s plant as heard in the living room of plaintiff about 11:00 P.M. was not error over _ the objecting that the recording of noises could have been amplified by the plaintiffs. Ragusa v. American Works 97'So. (2d) 683. In this case the Court said: ‘‘We feel relatively certain that the trial Court did not err in permitting the introduction of this evidence.” 3. 2 “_ Was not the duty nor the province of the Court to undertake to point out exactly the steps appellant should take to comply with the judgment. Appellant is in a, position to determine this question.’’ Ellis v. Blan- chard 45 So. (2d) 100. 4. | oh Articles 668 and 669 of the Louisiana Civil Code. Art. 668. Although one be not at liberty to make any work by which his neighbor’s build- ings may be damaged, yet every ohe has the liberty of doing on his own ground: whatsoever he pleases, although it should occasion some inconvenience to his neighbor. & Thus he who is not Subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbors’s (neighbor’s) house, because this act occasions only an inconvenience, but not a real damage. ° 34 4. sie, aks Art. 669. If the works or materials for any manufactory or other operation, cause an in- convenience to those ,in- ‘the same -or in the neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulated, their sufferance must be determined by the rules of the police, or the customs of the place. cent moisture. 26. Under the terms of the contract between the. Breweries and the Degelos Corporation, the Corpora- tion must accept the. Brewer’s spent grain if, as and when the Breweries process the brews. 27.” The spent grain must be processed within 14 to : Supreme Ci C ie United State | TERM, 1965 - No. . oO DEGELOS BROS. GRAIN CORPORATION, | Petitioner, _Dersus * CITY OF NEW ORLEANS AND HEALTH DEPARTMENT CITY OF NEW ORLEANS, Respondent. BRIEF OF CITY OF NEW ORLEANS AND HEALTH DEPARTMENT CITY OF NEW ORLEANS IN OP- ’ POSITION TO THE ISSUANCE OF A WRIT OF - CERTIORARI TO THE. SUPREME ‘COURT OF LOUISIANA. : The City of New Orleans, and, the Health Depart- ment of the City of New Orleans, herewith submits its brief in opposition to the issuance of ‘& writ of certiorari to the Supreme Court of Louisiana. \ OPINIONS OF THE COURTS BELOW The opinions of the Courts below are correct as. [pre- sented by the petitioner. \ JURISDICT. ION a. The statement as to jurisdiction, presented by pe- titioner in paragraph (d) is in error, as the Ordinafice of the City of New Orleans No. 828 M.C.S., (The Code of the --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1276%3A1. Public record. Not legal advice.