Everhardt v. City of New Orleans

• Decision Date: 16 December 1968
• Docket Number: No. 49257,49257
• Citation: 253 La. 285,217 So.2d 400
• Parties: William EVERHARDT et al. v. CITY OF NEW ORLEANS, Victor H. Schiro, and Joseph Giarrusso.
• Court: Louisiana Supreme Court

Page 400

217 So.2d 400

253 La. 285

William EVERHARDT et al. v. CITY OF NEW ORLEANS, Victor H. Schiro, and Joseph Giarrusso.

No. 49257.

Supreme Court of Louisiana.

Dec. 16, 1968.

Rehearing Denied Jan. 20, 1969.

Alvin J. Liska, City Atty., Beuker F. Amann, Ernest L. Salatich, Maurice Friedman, Asst. City Attys., for applicants.

Jack P. F. Gremillion, Atty. Gen., Norman L. Sisson, Robert J. Jones, Robert L. Roshto, New Orleans, Marvin C. Grodsky, Russell Leach, Bricker, Evatt, Barton & Eckler, Columbus, Ohio, for amicus curiae.

William F. Wessel, Michael O. Miranne, New Orleans, for respondents.

FOURNET, Chief Justice.

This is a class action instituted by plaintiffs,¹ respondents herein, seeking to enjoin the defendants,² relators herein, from enfocing Sections 39--288.1(c),³ 38--288.2, 38-- 231(f) of Ordinance No. 3526 M.C.S., amending Ordinance 828 M.C.S., the Code of the City of New Orleans, and the matter is now before us on a writ of certiorari granted to the application of relators, 252 La. 269, 210 So.2d 508, to review the judgment of the Court of Appeal for the Fourth Circuit, reversing the judgment of the district court maintaining the constitutionality of the ordinance and declaring the same to be constitutional. 208 So.2d 423.

The court of appeal, relying on the general principle of law of the police power of the state to promote the public convenience or the general prosperity as well as those to promote public safety, health and morals, observed, 'The only function of the helmet requirement we are able to discern is to munimize 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.', and concluded, 'The helmet ordinance constitutes a denial of due process of law to plaintiffs in that it deprives them of an individual liberty without promoting a purpose beneficial to the public at large.' The court also held, 'The ordinance * * * denied plaintiffs the equal protection of laws in that it imposes undue restriction on one class of motoring public without any salutary effect to the public at large.'

In order to properly resolve this case we think it first necessary to consider the well recognized rule of law that an ordinance, like any act of the legislature, is presumed to be constitutional. As aptly observed by this court in Schwegmann Bros. v. Louisiana A.B.C. Board, 216 La. 148, 43 So.2d 248, '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. * * *' See, Banjavich v. Louisiana Lecensing Bd. for Marine Divers, 237 La. 467, 111 So.2d 505; Polizzi v. Lotz, 240 La. 734, 125 So.2d 146. Furthermore, the legislation is to be upheld if any set of facts can be conceived from which it could be concluded that there is a reasonable relationship between the law and the public good and safety. City of Shreveport v. Cunningham, 190 La. 481, 182 So. 649; City of New Orleans v. Le Blanc, 139 La. 113, 71 So. 248; Rast v. Van Deman & Lewis Co., 240 U.S. 342, 36 S.Ct. 370, 10 L.Ed. 679. Consequently, the one who attacks the constitutionality of a statute has the burden of establishing by clear and cogent evidence that the statute under attack is unconstitutional. Reynolds v. Louisiana Bd. of Alcoholic Beverage Control, 248 La. 639, 181 So.2d 377; Kansas City Southern Railway Co. v. Reily, 242 La. 235, 135 So.2d 915; Interstate Oil Pipe Line Co. v. Guilbeau, 217 La. 160, 46 So.2d 113.

The City of New Orleans under its home rule charter granted it by the State was delegated all of the police power necessary for the protection of life, safety, health, and morals of the citizens as well as to promote public convenience and the general prosperity; and clearly, under this comes the power to regulate traffic on the highways and streets. Moreover, driving upon public streets and highways is a privilege and not a right; and, in the field of public safety the council should have more latitude in regulating individual conduct. See, People v. Schmidt, 54 Misc.2d 702, 283 N.Y.S.2d 290.

The ordinance in question is simiar to the state statute, R.S. 32:190,⁴ which was adopted by the Legislature in the 1958 Regular Session to conform to the Highway Safety Program standards promulgated by the Secretary of the United States Department of Transportation wherein it is provided insofar as pertinent here: 'Each State shall have a motorcycle safety program * * *. 1. The program shall provide as a minimum that: * * * B. Each motorcycle operator wear an approved safety helmet and eye protection when he is operating his vehicle on streets and highways.'

Our attention has been called to three decisions of courts of other states that have passed upon similar type of helmet laws. The first is a decision of the Court of Appeals of Michigan, Division 2, dated April 30, 1968 in the matter of American Motorcycle Association v. Davids, 158 N.W.2d 72, in which the helmet law of that state was held unconstitutional; second is a decision of the Supreme Court of Rhode Island, dated May 8, 1968, in the matter of State ex rel. Colvin v. Lombardi, 241 A.2d 625, in which the helmet law of Rhode Island was held constitutional; and the third is a decision of the Supreme Judicial Court of Massachusetts, dated June 5, 1968, in the matter of Commonwealth v. Howie, 238 N.E.2d 373, in which a similar statute was held as a valid exercise of the police power.

In the latter case the Supreme Judicial Court of Massachusetts in upholding the statute, General Laws c. 90, § 7, requiring 'every person operating or riding a motorcycle to wear protective headgear conforming with certain minimum standards' declared, 'It lies within the power of the Legislature to adopt reasonable measures for the promotion of safety upon public ways in the interests of motorcyclists and others who may use them. * * * The act of the Legislature bears a real and substantial relation to the public health and general welfare and is thus a valid exercise of the police power. * * * As contended by the Commonwealth, '(t)he legislation is reasonable, applies to all equally, and is directly related to highway safety,' commenting, '(a) recent Michigan decision to the contrary is not persuasive. On this general subject we find ourselves in agreement with State ex rel. Colvin v. Lombardi, * * *.'

The Supreme Court of Rhode Island in the Lombardi case declared:

'* * * It is our unqualified judgment that the purpose sought to be achieved by requiring cyclists to wear protective headgear clearly qualified as a proper subject for legislation.

'The defendant's contention to the contrary presupposes that protection for the motorcycle operator was the sole motivation for the general assembly's action. Even if this were so, we are not persuaded that the legislature is powerless to prohibit individuals from pursuing a course of conduct which could conceivably result in their becoming public charges. Be that as it may, however, the requirement of protective headgear for the exposed operator bears a reasonable relationship to highway safety generally. It does not tax the intellect to comprehend that loose stones on the highway kicked up by passing vehicles, or fallen objects such as windblown tree branches, against which the operator of a closed vehicle has some protection, could so affect the operator of a motorcycle as to cause him momentarily to lose control and thus become a menace to other vehicles on the highways.

'It is fundamental that an act of the legislature commands judicial approval if on any reasonable view such act is designed and intended to protect the public health, safety and morals. * * *'

We have no hesitancy in concluding that Ordinance No. 3536 M.C.S., Sec. 39--288.1(c) is clearly within the police power of the city in regulating traffic on its streets and there is a reasonable relationship between the ordinance and the public good and safety. It promotes safety upon the streets and highways in the interest of the motorcyclist as well as all others who may use them, applying to all cyclists equally.

The argument of counsel for plaintiffs that the ordinance violates the equal protection clause in that it singles out one portion of motor vehicle operators, is untenable. Counsel obviously fails to recognize that motorcycles are in a different category from other motor vehicles, constituting a greater traffic hazard on public streets than travel by automobile, truck or other enclosed vehicle, both in respect to the driver thereof as well as to operators of the other vehicles. The operator of a motorcycle has considerably less body protection than operators of enclosed vehicles and is more susceptible to be injured and cause other injuries. Thus, there is a reasonable basis for the requirement of headgear to motorcycle drivers as opposed to such requirements for automobile drivers or golf cart operators as contended by respondent.

Finally, the contention is made that the ordinance is vague and...