City of New Orleans v. Dukes, No. 74-775
| Court | United States Supreme Court |
| Writing for the Court | PER CURIAM; MARSHALL; STEVENS |
| Citation | 427 U.S. 297,96 S.Ct. 2513,49 L.Ed.2d 511 |
| Parties | CITY OF NEW ORLEANS et al., Appellants, v. Nancy DUKES, dba Louisiana Concessions |
| Docket Number | No. 74-775 |
| Decision Date | 25 June 1976 |
v.
Nancy DUKES, dba Louisiana Concessions.
[Syllabus from pages 297-298 intentionally left blank]
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Joel P. Loeffelholz, New Orleans, La., argued the cause for appellants. With him on the brief was Blake G. Arata, New Orleans, La.
Joseph Neves Marcal III, New Orleans, La., argued the cause and filed a brief for appellee.
PER CURIAM.
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 amendeder 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, 95 S.Ct. 1556, 43 L.Ed.2d 773 (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 per-
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mits to points outside the Vieux Carre. However, even as to those occupations including all pushcart food vendors which were to be banned from 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, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (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 invalid as repugnant to the Constitution, treaties or laws of the United States . . . ."
A municipal ordinance is a "State statute" for purposes of this provision. See Doran v. Salem Inn, Inc., 422 U.S. 922, 927 n. 2, 95 S.Ct. 2561, 2566, 45 L.Ed.2d 648 (1975); United Gas Co. v. Ideal Cement Co., 369 U.S. 134, 82 S.Ct. 676, 7 L.Ed.2d 623 (1962). See also, E. g., Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967); Chicago v. Atchison, T. & S. F. R. Co., 357 U.S. 77, 78 S.Ct. 1063, 2 L.Ed.2d 1174 (1958); City of Detroit v. Murray Corp., 355 U.S. 489, 78 S.Ct. 458, 2 L.Ed.2d 441 (1958).
However, it is argued that the Court of Appeals' decision is not "final" under the doctrine enunciated in Slaker v. O'Connor, 278 U.S. 188, 49 S.Ct. 158, 73 L.Ed. 258 (1929) (involving predecessor statute to § 1254(2)), and South Carolina Electric & Gas Co. v. Flemming, 351 U.S. 901, 76 S.Ct. 692, 100 L.Ed. 1439 (1956) (Per curiam ), since the Court of Appeals, although finding the statute unconstitutional as applied, remanded the case to the District Court for a determination as to the severability of the "grandfather provision." There may be some question as to the continuing vitality of the "finality" requirement in the context of § 1254(2), which unlike such jurisdictional statutes as 28 U.S.C. §§ 1257
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and 1291 has no "finality" provision in the statute itself. See, e. g.,...
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