City of Lake Charles v. Hasha

• Decision Date: 14 December 1959
• Docket Number: No. 44616,44616
• Citation: 238 La. 636,116 So.2d 277
• Parties: CITY OF LAKE CHARLES v. Malvern M. HASHA.
• Court: Louisiana Supreme Court

Page 277

116 So.2d 277

238 La. 636

CITY OF LAKE CHARLES v. Malvern M. HASHA.

No. 44616.

Supreme Court of Louisiana.

Dec. 14, 1959.

Curtis R. Boisfontaine, New Orleans, Cecil C. Cutrer, City Atty., Eugene H. Lawes, Asst. City Atty., Lake Charles, for plaintiff-appellant.

Jones, Kimball, Harper, Te te & Wetherill, Lake Charles, for defendant-appellee.

Clarence F. Favret, New Orleans, amicus curiae.

VIOSCA, Justice.

The matter in dispute on this appeal is the constitutionality of Ordinance No. 1145 of the City of Lake Charles which attempts to regulate certain advertising procedure in the retail sale of petroleum products.

On October 15, 1958, the City of Lake Charles adopted Ordinance No. 1145 under the provisions of which it was unlawful to post or maintain in a business selling or offering for sale petroleum products, a sign larger than twelve inches in height and twelve inches in width. Malvern M. Hasha, owner of the Broad Street Esso Servicenter in the City of Lake Charles, was arrested by police authorities of the City of Lake Charles for admittedly violating the provisions of Ordinance No. 1145. Upon trial, defendant filed a motion to quash based on the plea that Ordinance No. 1145 was unconstitutional. Trial upon the motion was had and the City Court entered judgment sustaining defendant's motion to quash. The City of Lake Charles has appealed to this Court.

On this appeal the City of Lake Charles assigns as error the following:

1. The ruling that Ordinance No. 1145 of the City Council of Lake Charles, is unconstitutional;

2. The ruling that the Ordinance was a wrongful discrimination against the defendant the class of business conducted by him;

3. The ruling that the Ordinance constituted an unreasonable invasion of private property rights, depriving defendant of his property and the use thereof without due process of law;

4. The court's inquiring into the intent of the legislative body of a municipal corporation, in its consideration of the constitutionality of an ordinance.

The City of Lake Charles contends that it has authority under the police power to regulate a business to the extent provided by Ordinance No. 1145 and that the courts in considering the constitutionality of such enactment are without right to inquire into the intent or motive of the legislative body adopting it.

In his motion to quash the defendant alleges: 'that the restrictions imposed by said Ordinance No. 1145 bear no reasonable relation to the recited purpose thereof and constitute (1) an oppressive and unreasonable invasion of private rights by interference with a lawful conduct of a lawful business, (2) a wrongful discrimination against defendant and the class of business conducted by him, and (3) an arbitrary attempt, under the guise of police power, to control the prices of gasoline and other petroleum products and to eliminate competition by forbidding the effective advertisement of prices thereon; all of which interfere with defendant's personal liberty, deprive him of his 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 the Constitution of Louisiana, and particularly Section Two of Article One thereof.'

Ordinance No. 1145 of the City of Lake Charles provides:

'An Ordinance regulating advertising procedure in the retail sales of petroleum products.

'Whereas, the City Council for the City of Lake Charles has been furnished information by the citizenry of the City, pertaining to certain misleading or possibly fraudulent advertising practices in the City, concerning the retail sale of petroleum products, and

'Whereas, the Council feels that such practices result in a serious detriment to the public interest, and especially the consumer of petroleum products, and

'Whereas, in order to curb any such misleading or possibly fraudulent activities in any retail sales of petroleum products, the Council concludes that the size, contents and placement of all signs or placards pertaining to the retail sales of petroleum products, must be regulated, and

'Whereas, the betterment of public interest will be further served by said regulation, in that, the limitations of size placed on said signs and placards will remove certain unsightly conditions, thus, the beautification of the City will be the natural result.

'Be It Ordained By the City Council of the City of Lake Charles, Louisiana, in regular session convened, that:

'Section 1: (Pertaining to advertising for the retail sale of gasoline only). It shall be unlawful for any person, firm or corporation to sell or offer for sale at retail for use in internal combustion engines in motor vehicles any gasoline unless such seller shall post and keep continuously posted on the individual pump or other dispensing device from which such gasoline is sold or offered for sale a sign or placard not less than seven inches in height and eight inches in width nor larger than twelve inches in height and twelve inches in width and stating clearly and legibly in numbers of uniform size the selling price or prices per gallon of such gasoline so sold or offered for sale from such pump or other dispensing device together with the name, trade name, brand, mark or symbol, and grade or quality classification, if any, of such gasoline.

'(a) The amount of governmental tax to be collected in connection with the sale of such gasoline shall be stated on such or placard and separately and apart from such selling price or prices.

'(b) No sign or placard stating or referring directly or indirectly to the price or prices of gasoline other than such signs or placards as hereinabove provided shall be posted or maintained on, at, near or about the premises on which said gasoline is sold or offered for sale.

'Section 2: (Pertaining to advertising for retail sale of all other petroleum products). It shall be unlawful for any person, firm, or corporation in connection with the sale or offer for sale at retail of any petroleum products for use in motor vehicles, other than gasoline, to post or maintain at such place of sale or offer for sale, any sign, placard, or other display that states, relates, or refers to, the price at which such petroleum products are sold or offered for sale, except as follows:

'(a) Such sign, placard or other device shall be not less than seven inches in height and eight inches in width, larger than twelve inches in height and twelve inches in width.

'(b) The price stated, mentioned or referred to on such sign, placard, or other display, shall be by the unit of measure at which such petroleum products are customarily sold at retail.

'(c) The name, trade name, brand, mark or symbol, and grade or quality classification, if any, of such petroleum products, shall be clearly stated on such petroleum products, shall be clearly stated on such sign, placard, or other display, and if such petroleum products are sold without identification by name, trade name, brand, mark, or symbol, such sign, placard, or other display shall refer clearly to such petroleum products as...