City of New Orleans v. Dukes, 427 U.S. 297 (1976)

APPEAL FROM THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Syllabus

A New Orleans ordinance prohibits pushcart food sales in the Vieux Carre, or French Quarter, but by a "grandfather provision" exempts pushcart vendors who had operated in the Quarter for eight years. Appellee, who had conducted a pushcart business there for less than that time, brought suit in the District Court challenging the application of the grandfather provision as a denial of equal protection. The District Court granted appellant city’s motion for summary judgment. The Court of Appeals, finding the grandfather provision a totally arbitrary and irrational method of achieving the city’s conceded authority to regulate street business in the Vieux Carre to preserve the Quarter’s values as a tourist attraction, and relying mainly on Morey v. Doud, 354 U.S. 457, reversed, and remanded the case for a determination as to the severability of the grandfather provision.

Held:

1. This Court has jurisdiction of the appeal under 28 U.S.C. § 1254(2), which authorizes this Court’s review of an appeal by a party relying on a state statute (including a municipal ordinance) held unconstitutional by a court of appeals. Notwithstanding whether the ordinance as a whole or only its grandfather clause will be invalidated, its unconstitutionality has been definitely and finally adjudicated by the Court of Appeals, leaving no federal issue to be resolved below.

2. The grandfather provision does not violate the Equal Protection Clause of the Fourteenth Amendment. Morey v. Doud, supra, overruled.

(a) States have wide latitude in regulating their local economies, and when a local economic regulation like the ordinance here, which is aimed solely at enhancing the Vieux Carre’s tourist appeal as part of the economy of New Orleans, is challenged as violating equal protection, this Court defers to the legislative determination as to the desirability of particular statutory discriminations, and only such regulations as amount to an invidious discrimination will be held to violate the Equal Protection Clause.

(b) The city could rationally choose initially to eliminate more recent pushcart vendors, rather than absolutely to bar all pushcart vendors, on the ground that the newer businesses were less likely to have built up substantial reliance interests in the Vieux Carre, and that the two vendors that qualified under the grandfather clause themselves have become part of the distinctive charm of the Quarter.

501 F.2d 706, reversed and remanded.