427 U.S. 297 (1976), 74-775, City of New Orleans v. Dukes

Docket Nº:No. 74-775
Citation:427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511
Party Name:City of New Orleans v. Dukes
Case Date:June 25, 1976
Court:United States Supreme Court

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427 U.S. 297 (1976)

96 S.Ct. 2513, 49 L.Ed.2d 511

City of New Orleans



No. 74-775

United States Supreme Court

June 25, 1976

Argued November 11, 1975




A New Orleans ordinance prohibits pushcart food sales in the Vieux Carre, or French Quarter, but by a "grandfather provision" exempts pushcart vendors who had operated in the Quarter for eight years. Appellee, who had conducted a pushcart business there for less than that time, brought suit in the District Court challenging the application of the grandfather provision as a denial of equal protection. The District Court granted appellant city's motion for summary judgment. The Court of Appeals, finding the grandfather provision a totally arbitrary and irrational method of achieving the city's conceded authority to regulate street business in the Vieux Carre to preserve the Quarter's values as a tourist attraction, and relying mainly on Morey v. Doud, 354 U.S. 457, reversed, and remanded the case for a determination as to the severability of the grandfather provision.


1. This Court has jurisdiction of the appeal under 28 U.S.C. § 1254(2), which authorizes this Court's review of an appeal by a party relying on a state statute (including a municipal ordinance) held unconstitutional by a court of appeals. Notwithstanding whether the ordinance as a whole or only its grandfather clause will be invalidated, its unconstitutionality has been definitely and finally adjudicated by the Court of Appeals, leaving no federal issue to be resolved below.

2. The grandfather provision does not violate the Equal Protection Clause of the Fourteenth Amendment. Morey v. Doud, supra, overruled.

(a) States have wide latitude in regulating their local economies, and when a local economic regulation like the ordinance here, which is aimed solely at enhancing the Vieux Carre's tourist appeal as part of the economy of New Orleans, is challenged as violating equal protection, this Court defers to the legislative determination as to the desirability of particular statutory discriminations, and only such regulations as amount

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to an invidious discrimination will be held to violate the Equal Protection Clause.

(b) The city could rationally choose initially to eliminate more recent pushcart vendors, rather than absolutely to bar all pushcart vendors, on the ground that the newer businesses were less likely to have built up substantial reliance interests in the Vieux Carre, and that the two vendors that qualified under the grandfather clause themselves have become part of the distinctive charm of the Quarter.

501 F.2d 706, reversed and remanded.

Per curiam opinion.


The question presented by this case is whether the provision of a New Orleans ordinance, as amended in 1972, that excepts from the ordinance's prohibition against vendors' selling of foodstuffs from pushcarts in the Vieux Carre, or French Quarter, "vendors who have continuously operated the same business within the Vieux Carre . . . for eight or more years prior to January 1, 1972 . . . " denied appellee vendor equal protection of the laws in violation of the Fourteenth Amendment.1

Appellee operates a vending business from pushcarts throughout New Orleans, but had carried on that business in the Vieux Carre for only two years when the ordinance was amended in 1972 and barred her from

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continuing operations there.2 She had previously filed an action in the District Court for the Eastern District of Louisiana attacking the validity of the former version of the ordinance,3 and amended her complaint to challenge the application of the ordinance's "grandfather clause" -- the "eight years or more" provision -- as a denial of equal protection. She prayed for an injunction and declaratory judgment. On cross-motions for summary judgment, the District Court, without opinion, granted appellant city's motion. The Court of Appeals for the Fifth Circuit reversed. 501 F.2d 706 (1974). We postponed the question of this Court's jurisdiction to a hearing on the merits, 421 U.S. 908 (1975). We hold that we have jurisdiction of appellant's appeal, and, on the merits, reverse the judgment of the Court of Appeals.

The Vieux Carre of the city of New Orleans is the heart of that city's considerable tourist industry and an integral component of the city's economy.4 The sector plays a special role in the city's life, and, pursuant to the Louisiana State Constitution, c. 8 of Art. V of the city's Home Rule Charter grants the New Orleans City Council power to enact ordinances designed to preserve its distinctive charm, character, and economic vitality.

Chapter 46 of the Code of the City of New Orleans sets up a comprehensive scheme of permits for the conduct of various businesses in the city. In 1972, the Code was amended to restrict the validity of many of these permits

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to points outside the Vieux Carre. However, even as to those occupations -- including all pushcart food vendors -- which were to be banned fro the Vieux Carre during seasons other than Mardi Gras, the City Council made the "grandfather provision" exception. Two pushcart food vendors -- one engaged in the sale of hot dogs and the other an ice cream vendor -- had operated in the Vieux Carre for 20 or more years, and therefore qualified under the "grandfather clause" and continued to operate there. The Court of Appeals recognized the

City Council's legitimate authority generally to regulate business conducted on the public streets and sidewalks of the Vieux Carre in order to preserve the appearance and custom valued by the Quarter's residents and attractive to tourists,

501 F.2d at 709, but nevertheless found that the Council's justification for the "grandfather" exception was "insufficient to support the discrimination imposed," and thus deprived appellee of equal protection. Id. at 711. Stating expressly that this Court's decision in Morey v. Doud, 354 U.S. 457 (1957), was "our chief guide in resolving this case," 501 F.2d at 710, the Court of Appeals focused on the "exclusionary character" of the ordinance and its concomitant "creation of a protected monopoly for the favored class member." Id. at 712-713. The "pivotal defect" in the statutory scheme was perceived to be the fact that the favored class members need not "continue to operate in a manner more consistent with the traditions of the Quarter than would any other operator," id. at 711, and the fact that there was no reason to believe that length of operation "instills in the [favored] licensed vendors (or their likely transient operators) the kind of appreciation for the conservation of the Quarter's tradition" that would cause their operations to become or remain consistent with that tradition. Id. at 712. Because these factors demonstrated the "insubstantiality of the relation between the

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nature of the discrimination and the legitimate governmental interest in conserving the traditional assets of the Vieux Carre," id. at 713, the ordinance was declared violative of equal protection as applied, and the case was remanded for a determination of the severability of the "grandfather clause" from the remainder of the ordinance.


The question of this Court's jurisdiction to hear the appeal need detain us only briefly. Title 28 U.S.C. § 1254(2) grants jurisdiction to review decisions of the courts of appeals

[b]y appeal by a party relying on a State statute held by a court of appeals to be [96 S.Ct. 2516] invalid as repugnant to the Constitution,...

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