State v. LaBauveState v. LaBauve
The sole issue before us, as raised by the defendant‘s appeal,2 concerns the constitutionality of the cited statute. The trial court had denied a motion to quash the information because of the invalidity of the statute upon which based.
By such motion, the defendant contends that the cited statute is a local law enacted in violation of
(1)
The Louisiana legislature possesses the authority to enact any law which is not prohibited by the federal or Louisiana constitutions. See Davenport v. Hardy, 349 So.2d 858 (La.1977) and cases cited therein. The basis of defendant‘s argument is that
The jurisprudence interpreting
Under these cases, however, a law, general in its terms, is not considered to be local or special, even though its enforcement may be limited to a particular locality, simply because the conditions under which it operates do not prevail in every locality. Davenport v. Hardy, cited above; State ex rel. Miller v. Henderson, cited above; Kotch v. Board of River Port Pilot Commissioners, cited above; State v. Donato, 127 La. 393, 53 So. 662 (1910); State v. Dalon, cited above. Rather the factor which makes a statute special or local is that it operates in one locality without the possibility of extending its coverage to other areas should the requisite criteria of its statutory classification exist there or that it affects only a certain number of persons within a class and not all persons possessing the characteristics of the class. State ex rel. Miller v. Henderson, cited above. See also Comment, General and Special Laws in Louisiana, 16 La.L.Rev. 768 (1956); 2 Sutherland, Statutes and Statutory Construction § 40.02 (4th ed. 1973).
(2)
The statute prohibits the use of gill nets in portions of Terrebonne and Lafourche parishes south of the Intracoastal Canal. The legislature is, of course, empowered to regulate or even prohibit the use of gill nets in commercial fishing. It can provide criminal penalties for violation, however, only by a general statute applicable to all similarly-classified parishes or localities. On its face, the present statute is a local statute which (for no shown reason) applies only to portions of Lafourche and Terrebonne parishes.3
In State v. Clement, 188 La. 923, 178 So. 493 (1938), the court held that a statute which prohibited trapping in marsh lands within a certain proximity of the Gulf of Mexico was a local or special law and invalid for want of publication as required by the state constitution. The classification created was marsh lands within 150 miles of the Gulf.
In declaring the act to be special because of the unreasonable classification, the court took notice of the fact that there were numerous swamp areas without this arbitrary perimeter and stated that there was no rational justification for the latter‘s exclusion. If the statute had been applicable to all marsh lands in the state, it would have been upheld as a general law.
Whatever the prior jurisprudence, the Louisiana Constitution of 1974 in unmistakable terms specifically prohibits this type of legislation.
When the operation of a law is limited to certain parishes, it is suspect as a local or special law. If its operation is so limited solely through the effect of a reasonable general classification (such as population size or physical characteristics), the law should not be considered within the prohibition of
(3)
The state argues, however, that a statute is presumed to be constitutional and that the person attacking it has the burden of proving the contrary.
Nevertheless,
Since by this analysis the statute on its face is a local criminal law, the defendant
Conclusion
This statute is plainly a local law defining a state crime applicable only to a given locality, in violation of the express provision and the intended prohibition of
Accordingly, we declare
STATUTE HELD TO BE UNCONSTITUTIONAL; CONVICTION AND SENTENCE REVERSED; PROSECUTION DISMISSED.
SANDERS, C. J., and SUMMERS and MARCUS, JJ., dissent.
APPENDIX A
Use of gill nets, trammel nets and seines in portions of Terrebonne and Lafourche Parishes
A. The use of gill nets is hereby prohibited in the area bounded on the north by the southern line of the Intracoastal Waterway, on the south 750 feet seaward from the inside and outside shrimp line described in
R.S. 56:495 , on the east by the eastern boundary line of the parish of Lafourche and on the west by the western boundary line of the parish of Terrebonne. Any such nets found in use in the area described above shall be confiscated and destroyed.
B. Except for the period from July 16 through April 14 following, the use of trammel nets and seines for saltwater fishing is hereby prohibited in the area bounded on the north by the southern line of the Intracoastal Waterway, on the south 750 feet seaward from the inside and outside shrimp line described in
R.S. 56:495 , on the east by the eastern boundary line of the parish of Lafourche and on the west by the western boundary line of the parish of Terrebonne. It is specifically provided in this section that menhaden vessels licensed by the State of Louisiana shall be allowed to purse seine for menhaden seaward but not nearer than 750 feet seaward from the inside and outside shrimp line described inR.S. 56:495 .
C. Any person found guilty of violating any provision hereof shall be subject to a fine of not less than two hundred dollars or more than five hundred dollars or imprisonment of not less than thirty days or more than six months. As an additional penalty, the violator‘s net or nets and catch shall be confiscated.