*1 286 285 217 400 al. EVERHARDT et
William Schiro, ORLEANS, H. Victor
CITY OF NEW Joseph Giarrusso. 49257.
No.
Dec. 1968.
Rehearing Denied Jan.
28 M.C.S., 231(f) of Ordinance No. 3526 M.C.S., amending Ordinance Code Orleans, of New matter is now before us on a writ of certiorari relators, granted application to the *2 269, 508, judg- La. to 210 So.2d review Appeal ment of for the Fourth Circuit, judgment reversing the dis- of constitutionality maintaining trict court declaring of ordinance and the same to be constitutional. 208 423. F. Liska, Atty., Beuker City Alvin J. Salatich, Fried- Maurice Amann, Ernest L. appeal, gen- relying court of on the Attys., applicants. City for man, Asst. principle police power eral of law of the public of state to conven- Atty. Gen., Gremillion, Nor- P. F. Jack prosperity ience or the as well as L. Sisson, Jones, Robert L. Robert man J. safety, promote public those to health and Grodsky, Orleans, Roshto, Marvin C. New morals, observed, “The function Bricker, Evatt, Leach, Barton & Russell requirement the helmet we are able dis- to Columbus, Ohio, curiae. Eckler, for amicus injury cern is to minimize the extent to cyclist the individual in an acci- involved Miranne, Wessel, Michael O. F. William dent, safety and not contribute Orleans, respondents. for New motoring large. at Thus we personal concerned with a limitation of FOURNET, Chief Justice. liberty motorcyclist.”, of the individual by plain- concluded, .This is a class action instituted “The helmet ordinance consti- tiffs,1 herein, respondents seeking enjoin plain- process tutes a denial due law defendants,2 herein, en- deprives relators in that them of an individ- tiffs it 38-288.2, liberty (c),3 promoting purpose 38- ual Sections 39-288.1 without forcing 2. 3. 1. Plaintiffs are n Hayes ' . ride Eckland, Victor H. ciation. Qiari-u'sso, "Superintendent Greater “Headgear: Defendants New Russell E. Tutrix any motorcycle Sehiró, Mayor, are the No William Orleans person City Edward Everhardt, Garrett, Motorcycle of New shall 'or of Police.': ' Hayes, any operate ’Dorothy Orleans, Arnold Joseph motor , Asso- . (cid:127) -v . with and helmet of the with a chin- factured for use vehicles, motion. All driven,cycle [*] [*] lining, [*] >! which shall be wearing unless -strap padding such while the on the helmets shall and chin person properly head, vehicle is equipped of such secured consist manu- safety strap. n 289 large.” 113, 248; at
beneficial
The La.
71 So.
Rast v. Van Deman &
held,
Co.,
342,
also
“The ordinance
370,
court
Lewis
240 U.S.
S.Ct.
equal protection
plaintiffs the
of L.Ed.
Consequently,
denies
679.
at
one who
imposes
undue restriction on
laws
that it
the constitutionality
tacks
of a statute motoring public
one class
without
the burden
establishing by
clear and
salutary
large.”
effect
at
cogent
evidence that the statute under at
tack
Reynolds
is unconstitutional.
v.
properly
In
resolve this
order to
Louisiana Bd. of
Beverage
Alcoholic
Con
necessary
it
case we think
first
to consider
trol,
639,
377;
248 La.
181 So.2d
Kansas
recognized
that an
the well
rule
law
or
City
Railway
Southern
Reily,
Co. v.
dinance,
legislature,
like
act of
235,
915;
La.
135 So.2d
Pipe
Interstate Oil
aptly
presumed
As
constitutional.
be
Guilbeau,
Line
160,
Co. v.
217 La.
46 So.2d
Schwegmann
Bros.
observed
this court
Board, 216 La.
A. B.
Louisiana
C.
elementary that an act
“It is
of New Orleans
43 So.2d
under
its home
legal,
rule
presumed
granted
charter
Legislature is
State
delegated
police power
all of
judiciary
right
without
declare
neces
sary
protection
life,
safety,
that is
unconstitutional unless
manifest.
*3
health, and morals of the
This rule
in cases in
citizens
strictly
is
observed
as well
in
volving laws enacted
the exercise of the
convenience and the
”
* * *
general prosperity;
clearly,
See,
power.
Ban
under this
state’s
power
regulate
comes
javich
Licensing
v. Louisiana
Bd. for Ma
traffic on the
highways
505;
Moreover,
Divers,
467,
and streets.
driving
rine
237 La.
111 So.2d
upon public
Lotz,
734,
highways
priv
streets and
is a
Polizzi v.
240 La.
ilege and
Furthermore,
right;
not a
legislation
and,
upheld
is to be
in the field of
public safety
the council
set of facts can be
should have more
conceived from
regulating
latitude in
which
could be
individual conduct.
concluded
there is a
See, People
702,
Schmidt,
v.
54 Misc.2d
relationship
reasonable
between the law and
hicle has some could so operator other vehicles. The of a mo- operator cause torcycle considerably body pro- less momentarily lose control and him thus operators tection than of enclosed vehicles become menace other vehicles on susceptible injured is more highways. injuries. cause Thus, other there ais rea- fundamental that an act of the “It is sonable requirement basis head- judicial approval legislature commands gear opposed drivers on de- reasonable view such act is requirements such for automobile drivers signed pub- and intended golf cart as contended re- ” health, safety lic and morals. spondent. Finally, hesitancy in conclud contention is made that the have no We M.C.S., vague in that ing that and indefinite Ordinance No. Sec. ordinance guidelines specifi- not set clearly within the does forth (c) 39-288.1 worn, regulating city traffic on cations as to the thority proved If he shall no- association. the director of this section issue said approval approved meets tice of of the helmet.” helmet so finds specifications fixed or under au- *5 many torcycle City types are manu- Helmet Ordinance of the claiming that there unconstitutional, Orleans is New null factured. void. appreciation the evidence in the Our there are that while several
record shows BARHAM, (dissenting). Justice competitive in the manufacture firms recognize principles I the of law enunci- types two helmets there majority opinion legisla- in ated the that e., coverage type manufactured, i. a full constitutional, presumed that be shell hel- competition in and a half worn police its the of New Orleans under non-competition Unques- riding. met for power authority regulate traffic on tionably, adopting the in the ordi- council public ways streets in order is wear nance that driver the city public safety, and the that type the “a helmet of the may make reasonable classifications in operators by the manufactured for use drafting accomplish this of ordinances to cognizant were such vehicles” conclude, however, purpose. did the I purpose. Appropri- that manufactured for only purpose Appeal, Court of ate here we think the observation of is minimize which ordinance serves Supreme Court of Rhode Island in injuries and riders issue, resolving a in similar Lombardi case “ * ** they in acci- are involved be- 'helmet’ to-wit: word prevent acci- designed dents. It is not art with a word of when identifies comes therefore, public safety not, dents and is firemen, specific Thus, police, use. measure. helmets conform to known and football approved open and are standards not majority has which the The conclusions uncertainty meaning or use.” constitutionality or- supply to this made to assigned judgment
For reasons sparse supported dinance are not Appeal Court of record, reversed these so it must be assumed judgment of the is affirmed. district court judicial in the conclusions are nature of majority that the ordi- finds
notice. SUMMERS, J., joins promotes safety dissents the interest nance by BARHAM, assigned motorcyclist reasons for dissent I can- as well as others. wearing a helmet determine how the J- motorcyclist can conducive to HAMITER, (dissenting). Justice operation motorcycle. He is safer by accident-prone I as without the helmet am accord with the result reached Appeal, being regard mo- thát Mo- both to himself and to other ducibly Certainly logically an motor- torists. unhelmeted the ordinance will danger presents cyclist no increased force one class of individuals to public. motoring The most themselves from rest of own harmful their acts or support the insistence omissions (cid:127)can be said to the harmful acts or original my Generally wearing of the helmets is omissions of others. mitigate exploited require (cid:127)conclusion cannot be the in- *6 fact, cyclist’s injury after the dividual to wrong- himself after from the others, safety. ful .accident, only after the breach of acts of and in extraordi- nary may governing circumstances au- says majority The also thority with, prescribe interfere regula- or n constitute greater a traffic hazard “both for, activity tions of individuals which respect as well as to to the driver thereof harmful to not others. n the other On vehicles”. right n contrary, it would property The of one to use his as appear and that the size long he chooses so as his use does harm no motorcycles make them as to weight of liberty. a natural others is Even when larger less than and more (cid:127)others hazardous right upon public is exercised thor- n formidablevehicles. oughfares, police regulation must of it serve because of Finally it is reasoned that overriding public purpose. an Police motorcyclists body protection are “more less with, exceed, is commensurate but does not injured and cause other susceptible to be duty provide real needs of they assumption that Only injuries”. health, safety, people in and matters of validity susceptible injury -are more deprivation general welfare. The in- certainty. my mind then not to and by legislation liberty dividual under the assumption motorcyclist’s lack that the accomplish ap- police power must in an body highway protection makes other (cid:127)of particular public propriate manner the ne- likely injured appears users more apparent cessity. It on the face of is not logic. or I can "be foundation find without this ordinance or concluding helmeting no basis particular included in this class those not n even motorcyclists armouring our would will benefit from enforce- derive injuries fewer to others. (cid:127)cause ment. necessary and simply attempt Reasonable classification ordinance is an Motorcyclists desirable. are persons mitigate sometimes force one class n minimize fact, fact, placed dis- be in injuries their and resulting own from regulate their use of regard tinct class so as to .accident without to causation of safety. highways when the classifi- general highway De- the streets and accident or 300> convenience, That less unconstitutional. citizens in safety, our is for cation However, unanimity think public. foolhardy almost to ride- general welfare of protective arbitrarily unreason- without this ordinance defining criterion for motorcyclist individual is not alone a the- ably deprives the Although non-use of helmet a crime. only purpose served is liberty when validly protect, laws have been enacted to more nu- self-protection and when other legally incompetent are simi- their own- who users of merous acts, persons disregard some of required to utilize who larly not situated elementary self-preserva- only the most forms of equipment which serve devices and are, unfortunately, legal incompe- injuries. This ordi- minimize their own tents, fools; lib- but individual the heart of nance strikes at is, use right act and to erty “ —that * * * a must natural' fool follow his property that action when one’s bent the face In else. use harm no one “(Even you I!)” of the con- deprivation ordinance’s obvious acts, Observing no harm in the and use of action right free stitutional good sought and no arbitrarily controlled selected a small property of ordinance, I con- showing an derivative of there must be some group city police- that the has exceeded its clude public. Not even overriding service to *7 unconstitu- record, and that the ordinance is totally speculation outside respectfully dissent. tional. therefore I before us can briefs, arguments that a possibly sustain a conclusion Rehearing denied. accomplished by ordi- being purpose nance. HAMITER, and BAR- SUMMERS the refusal of a. HAM, JJ., dissent from doubt humane is no
The ordinance rehearing. sensible, eminently it is nonethe- but even