City of Lafayette v. Justus
| Decision Date | 24 February 1964 |
| Docket Number | No. 46908,46908 |
| Citation | 161 So.2d 747,245 La. 867 |
| Parties | CITY OF LAFAYETTE, Louisiana v. Pleasant JUSTUS. |
| Court | Louisiana Supreme Court |
Warren D. Rush, Bean & Rush, Lafayette, for appellant.
Landry, Watkins, Cousin & Bonin, Guyton H. Watkins, New Iberia, for defendant-appellee.
The defendant, Pleasant Justus, was charged on or about November 14, 1962, with the violation of Ordinance No. 566 of the City of Lafayette, Louisiana, which prescribes the size and location of signs used within the city to advertise, at retail, the price of gasoline and other petroleum products used in motor vehicles. After arrest and before arraignment defendant filed a motion to quash the affidavit and warrant on the ground that the ordinance was unconstitutional. The city court declared the ordinance unconstitutional and the city has appealed.
The title of the ordinance states its object to be to regulate advertising procedure in the retail sale of petroleum products and to provide penalties for its violation.
The ordinance contains a preamble which sets forth that the Board of Trustees, who enacted the ordinance, had been furnished information by the 'citizenry' pertaining to 'misleading advertising practices' in the retail sale of petroleum products. These practices, the board felt, resulted in 'serious detriment to the public interest' and especially the consumer of petroleum products, and concluded that the size, contents and placement of all signs should be regulated. The preamble of the ordinance further declared that the regulation would
The ordinance then provides that the retail seller of gasoline shall post on the individual pump a sign not less than seven inches in height and eight inches in width, nor larger than twelve inches in height and twelve inches in width, stating the selling price of the gasoline and its name and grade classification. The government tax is required to be separately stated on the sign.
By the ordinance no other signs referring to the price of gasoline are permitted about the premises where the gasoline is sold.
Similar regulations are prescribed for petroleum products other than gasoline.
The penalty imposed for violation is a fine of not more than $100 or imprisonment of not more than 30 days or both.
Defendant concedes that at the time of the violation, as Manager of the South College Esso Servicenter, located at 2903 Johnston Street in Lafayette, he was advertising the price of gasoline by use of a sign measuring six feet by four feet located on the premises, but not attached to the dispending equipment. He was, therefore, guilty of the charge under the language of the ordinance. His sole defense is the invalidity of the ordinance and he asserts as the basis for his attack on its constitutionality that the restrictions imposed by the ordinance bear no reasonable relation to the recited purpose of its enactment.
He further asserts that the ordinance constitutes an oppressive and unreasonable invasion of private rights for these restrictions and regulations interfere with the lawful conduct of a lawful business; they are a wrongful discrimination against defendant and the class of business in which he is engaged and are in essence an arbitrary attempt, under the guise of police power, to control prices and eliminate competiton by forbidding the effective advertisement of prices.
As a result it is urged that these regulations and restrictions interfere with defendant's personal liberty, deprive him of property and the use thereof without due process of law and deny him equal protection of the law, all in violation of the equal protection and due process clauses of the United States Constitution, and particularly the fifth and fourteenth amendments thereof, and in violation of Article I, Section 2 of the Constitution of Louisiana, LSA.
There have been many adjudications of the questions presented here in what are known as the 'Gas Sign Cases'. By a numerical majority of jurisdictions enactments such as that under review here have been held to be unconstitutional.
It is clear to this court and, in fact, it seems to be conceded that the restrictions of the ordinance in question do interfere with defendant's free use of his property in that they deprive him of the right and privilege to advertise in a manner determined by him and thus promote the sale of his product in the competitive market. As such, therefore, the ordinance deprives defendant of the use of his property without due process of law in violation of the Federal and State Constitutions.
This invasion of constitutional rights, however, is sought to be justified on the basis that the enactment of the ordinance was under the police power of the...
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...78 L.Ed. 940 (1934); Louisiana State Bd. of Optom. Exam. v. Pearle Optical,248 La. 1062, 184 So.2d 10 (1966); City of Lafayette v. Justus, 245 La. 867, 161 So.2d 747 (1964). Stated another way, the test of substantive due process is whether the regulation is reasonable in relation to the go......
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