Everhardt v. City of New Orleans, 2977

• Decision Date: 04 March 1968
• Docket Number: No. 2977,2977
• Citation: 208 So.2d 423
• Parties: William EVERHARDT, Arnold Eckland, Russell E. Garrett, Dorothy Hayes as Tutrix of Edward Hayes, and Greater New Orleans Motorcycle Association v. CITY OF NEW ORLEANS, Victor H. Schiro, and Joseph Giarrusso.
• Court: Court of Appeal of Louisiana — District of US

Page 423

208 So.2d 423

William EVERHARDT, Arnold Eckland, Russell E. Garrett Dorothy Hayes as Tutrix of Edward Hayes, and Greater New Orleans Motorcycle Association v. CITY OF NEW ORLEANS, Victor H. Schiro, and Joseph Giarrusso.

No. 2977.

Court of Appeal of Louisiana, Fourth Circuit.

March 4, 1968.

Rehearing Denied April 8, 1968.

Writ Granted June 4, 1968.

Michael O. Miranne, William F. Wessel, New Orleans, for William Everhardt, Arnold Eckland, Russell E. Garrett, Dorothy Hayes as tutrix of Edward Hayes, and Greater New Orleans Motorcycle Association, plaintiffs-appellants.

Alvin J. Liska, Maurice B. Friedman, New Orleans, for City of New Orleans, Victor H. Schiro, and Joseph Giarrusso, defendants-appellees.

Before YARRUT, CHASEZ and JANVIER, JJ.

CHASEZ, Judge.

Plaintiffs, one retail motorcycle dealer and a group of motorcycle riders residing in the Greater New Orleans Area, brought a class action in the Civil District Court for the Parish of Orleans, to enjoin the City of New Orleans from enforcing a penal ordinance requiring all cyclists to wear helmets while operating motorcycles within the city limits. Plaintiffs invoke this equitable remedy by asserting the ordinance is unconstitutional and that its enforcement will cause plaintiffs irreparable injury.

After defendant urged a declinatory exception to the jurisdiction of a civil court to enjoin enforcement of a penal law, but before the exception was argued, plaintiffs amended their pleadings to pray, in the alternative, for a declaratory judgment.

The City's answer averred the ordinance is a valid exercise of the police power in regulating matters concerning the public safety of its citizens.

From judgments maintaining the declinatory exception and declaring the ordinance is constitutional, plaintiffs have appealed.

Plaintiffs attack the validity of City Ordinance 3536, M.C.S., Sections 38--228.1(c), 38--228.2 and 38--231(f) Item No. 94. The pertinent section at issue is 38--228.1(c) which provides:

'Headgear: No person shall operate or ride upon any motorcycle or any motor driven cycle unless such person is equiped with and wearing on the head, a safety helmet of the type and design manufactured for use by the operators of such vehicles, which shall be properly secured with a chin strap while the vehicle is in motion . All safety helmets shall consist of lining, padding and chin strap.'

The purpose for its enactment is to minimize head injuries to the cyclist who is involved in an accident.

While plaintiffs have leveled several attacks against the constitutionality of this ordinance, we think the most serious issue presented for our determination is whether the exercise of police power vested in a lawmaking body extends to forcing a citizen to protect his own well-being, or whether it is limited to regulation of individual conduct when that conduct might affect the well-being of other persons in the community.

Before discussing the constitutional question, we must dispose of plaintiffs' argument that the City has usurped a state function in passing this ordinance. They urge the City may not regulate motorcycle traffic within its corporate limits because the state has previously legislated in this field.

While it is true that the state has enacted motor vehicle and traffic regulations in the Louisiana Highway Regulatory Act (LSA-R.S . 32:1 et seq.), the Louisiana legislature has reserved to local authorities the power to regulate the flow of traffic within their corporate limits under their general police power. The limitation upon this power is simply that a municipality may not pass a law that modifies or conflicts with a state statute. (See LSA-R.S. 32:41(13)). The motorcycle ordinance is well within the limits proscribed by the state as it neither modifies nor conflicts with state law.

Having determined the City is entitled to enact traffic regulations under its general police power, we must next consider whether the ordinance at issue is a valid exercise of the police power.

An ordinance is presumed to be constitutional. In Schwegmann Bros . v. Louisiana Board, etc., 216 La. 148, 43 So.2d 248, at p. 255 the Louisiana Supreme Court stated:

'It is elementary that an act of the Legislature is presumed to be legal, and the judiciary is without right to declare it unconstitutional unless that is manifest. This rule is strictly observed in cases involving laws enacted in the exercise of the state's police power. Further, under certain circumstances and when validly exercised the police power may encroach upon the due process guaranteed by the state and federal constitutions. * * *'

The strong presumption of constitutionally stems from judicial recognition of the necessity to vest in lawmaking bodies sweeping powers to regulate public health, morals and safety for the good of its citizenry; however, both federal and state jurisprudence imposes some constitutional restraints on the lawmakers.

The police power of a State today embraces regulations designed to promote the public convenience or the general prosperity as well as those to promote public safety, health and morals. The police power has been extended to legislation designed to promote the greatest welfare of the State. (See Nashville C. & St. L. Ry. v. Walters, 294 U.S. 405, 55 S.Ct. 486, 79 L.Ed. 949 (1934) and Eubank v. City of Richmond, 226 U.S. 137, 33 S.Ct. 76, 57 L.Ed. 156 (1912).) Even with the ever increasing expansion of police power, legislation enacted under its guise must concern the interest of the public generally.

The Louisiana Supreme Court so stated in Schwegmann Bros. v. Louisiana Board, etc., supra, as follows:

"In City of Alexandria v. Hall, 171 La. 595, 131 So. 722, 724, the following language found in State ex rel. Newman v. City of Laramie, 40 Wyo. 74, 275 P. 106 was quoted approvingly:

"To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; * * *"

The same limitation upon exercise of the police power in enacting legislation was applied in Weinberg v. Northern P. Ry. Co. (8 Cir.) 150 F.2d 645. At page 651 the Court observed:

'If the ordinance can be justified it must be on the theory that it is a reasonable exercise of the police power vested in the City. The City Council, however, may not under the guise of protecting the public interest, arbitrarily interfere with the operation of the common carrier or impose unreasonable restrictions on its lawful calling. To justify the legislation it must appear that the interest of the public generally, as distinguished from those of a particular class, require such interference, and even when this condition may be said to exist, the means to accomplish the purpose must be reasonably necessary and not oppressive nor arbitrary. Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385; * * * '

(Emphasis added.)

In the instant case we must consider whether the helmet requirement meets the test of a regulation enacted to promote the safety of the public at large. The only function of the helmet requirement we are able to discern is to minimize the extent of injury to the individual cyclist involved in an accident, and not to contribute to the safety of the motoring public at large. Thus we are concerned with a limitation of the personal liberty of the individual motorcyclist.

The Fourteenth...