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
Page 427 U. S. 298
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.
PER CURIAM.
The question presented by this case is whether the provision of
a New Orleans ordinance, as amended in 1972, that excepts from the
ordinance's prohibition against vendors' selling of foodstuffs from
pushcarts in the Vieux Carre, or French Quarter, "vendors who have
continuously operated the same business within the Vieux Carre . .
. for eight or more years prior to January 1, 1972 . . . " denied
appellee vendor equal protection of the laws in violation of the
Fourteenth Amendment. [
Footnote
1]
Appellee operates a vending business from pushcarts throughout
New Orleans, but had carried on that business in the Vieux Carre
for only two years when the ordinance was amended in 1972 and
barred her from
Page 427 U. S. 299
continuing operations there. [
Footnote 2] She had previously filed an action in the
District Court for the Eastern District of Louisiana attacking the
validity of the former version of the ordinance, [
Footnote 3] and amended her complaint to
challenge the application of the ordinance's "grandfather clause"
-- the "eight years or more" provision -- as a denial of equal
protection. She prayed for an injunction and declaratory judgment.
On cross-motions for summary judgment, the District Court, without
opinion, granted appellant city's motion. The Court of Appeals for
the Fifth Circuit reversed. 501 F.2d 706 (1974). We postponed the
question of this Court's jurisdiction to a hearing on the merits,
421 U.S. 908 (1975). We hold that we have jurisdiction of
appellant's appeal, and, on the merits, reverse the judgment of the
Court of Appeals.
The Vieux Carre of the city of New Orleans is the heart of that
city's considerable tourist industry and an integral component of
the city's economy. [
Footnote
4] The sector plays a special role in the city's life, and,
pursuant to the Louisiana State Constitution, c. 8 of Art. V of the
city's Home Rule Charter grants the New Orleans City Council power
to enact ordinances designed to preserve its distinctive charm,
character, and economic vitality.
Chapter 46 of the Code of the City of New Orleans sets up a
comprehensive scheme of permits for the conduct of various
businesses in the city. In 1972, the Code was amended to restrict
the validity of many of these permits
Page 427 U. S. 300
to points outside the Vieux Carre. However, even as to those
occupations -- including all pushcart food vendors -- which were to
be banned fro the Vieux Carre during seasons other than Mardi Gras,
the City Council made the "grandfather provision" exception. Two
pushcart food vendors -- one engaged in the sale of hot dogs and
the other an ice cream vendor -- had operated in the Vieux Carre
for 20 or more years, and therefore qualified under the
"grandfather clause" and continued to operate there. The Court of
Appeals recognized the
"City Council's legitimate authority generally to regulate
business conducted on the public streets and sidewalks of the Vieux
Carre in order to preserve the appearance and custom valued by the
Quarter's residents and attractive to tourists,"
501 F.2d at 709, but nevertheless found that the Council's
justification for the "grandfather" exception was "insufficient to
support the discrimination imposed," and thus deprived appellee of
equal protection.
Id. at 711. Stating expressly that this
Court's decision in
Morey v. Doud, 354 U.
S. 457 (1957), was "our chief guide in resolving this
case," 501 F.2d at 710, the Court of Appeals focused on the
"exclusionary character" of the ordinance and its concomitant
"creation of a protected monopoly for the favored class member."
Id. at 712-713. The "pivotal defect" in the statutory
scheme was perceived to be the fact that the favored class members
need not "continue to operate in a manner more consistent with the
traditions of the Quarter than would any other operator,"
id. at 711, and the fact that there was no reason to
believe that length of operation "instills in the [favored]
licensed vendors (or their likely transient operators) the kind of
appreciation for the conservation of the Quarter's tradition" that
would cause their operations to become or remain consistent with
that tradition.
Id. at 712. Because these factors
demonstrated the "insubstantiality of the relation between the
Page 427 U. S. 301
nature of the discrimination and the legitimate governmental
interest in conserving the traditional assets of the Vieux Carre,"
id. at 713, the ordinance was declared violative of equal
protection as applied, and the case was remanded for a
determination of the severability of the "grandfather clause" from
the remainder of the ordinance.
I
The question of this Court's jurisdiction to hear the appeal
need detain us only briefly. Title 28 U.S.C. § 1254(2) grants
jurisdiction to review decisions of the courts of appeals
"[b]y appeal by a party relying on a State statute held by a
court of appeals to be invalid as repugnant to the Constitution,
treaties or laws of the United States. . . ."
A municipal ordinance is a "State statute" for purposes of this
provision.
See Doran v. Salem Inn, Inc., 422 U.
S. 922,
422 U. S. 927
n. 2 (1975);
United Gas Co. v. Ideal Cement Co.,
369 U. S. 134
(1962).
See also e.g., Dusch v. Davis, 387 U.
S. 112 (1967);
Chicago v. Atchison, T. & S. F.
R. Co., 357 U. S. 77
(1958);
City of Detroit v. Murray Corp., 355 U.
S. 489 (1958).
However, it is argued that the Court of Appeals' decision is not
"final" under the doctrine enunciated in
Slaker v.
O'Connor, 278 U. S. 188
(1929) (involving predecessor statute to § 1254(2)), and
South
Carolina Electric & Gas Co. v. Flemming, 351 U.S. 901
(1956) (per curiam), since the Court of Appeals, although finding
the statute unconstitutional as applied, remanded the case to the
District Court for a determination as to the severability of the
"grandfather provision." There may be some question as to the
continuing vitality of the "finality" requirement in the context of
§ 1254(2), which, unlike such jurisdictional statutes as 28 U.S.C.
§ § 1257
Page 427 U. S. 302
and 1291, has no "finality" provision in the statute itself.
See, e.g., Doran v. Salem Inn, Inc., supra at
422 U. S. 927;
Chicago v. Atchison, T. & S. F. R. Co., supra, at
357 U. S. 82-83.
But, without resolving that question, we believe that any
"finality" test is met under the facts of this case.
The unconstitutionality of the ordinance, in its application to
appellee, has been definitely and finally adjudicated by the Court
of Appeals, and only a state law question remains to be decided on
remand -- whether the statute will be totally invalidated or
whether only its "grandfather provision" will be struck down. There
is no federal, much less constitutional, question which is yet to
be resolved below, and the policy underlying § 1254(2) -- ensuring
that state laws are not erroneously invalidated -- will in no way
be served by further delay in adjudicating the constitutional issue
presented. Moreover, since the outcome of the severability question
will not moot a difficult constitutional issue in this case, the
policy of avoiding needless constitutional decisions would not be
furthered by staying our hand. Furthermore, to the extent any
"finality" requirement in the context of § 1254(2) might be
premised on the policies of avoiding piecemeal appeals or the
rendering of advisory opinions, neither difficulty is likely to
eventuate in this case; even if we were to uphold the Court of
Appeals' remand for a determination of the severability of the
"grandfather provision" under state law, the ruling on remand is
not one which would be subject to further review in this Court. On
the other hand, a decision by this Court rejecting the
constitutional challenge to the statute will obviate the need for
further proceedings and bring to a halt the continued disruption of
the city's internal economic affairs.
Cf. generally, e.g., Cox
Broadcasting Corp. v. Cohn, 420 U. S. 469,
420 U. S.
476-478,
420 U. S. 480,
420 U. S.
485-486 (1975). We accordingly hold that this appeal is
properly
Page 427 U. S. 303
before us under 28 U.S.C. § 1254(2). We therefore turn to the
merits.
II
The record makes abundantly clear that the amended ordinance,
including the "grandfather provision," is solely an economic
regulation aimed at enhancing the vital role of the French
Quarter's tourist-oriented charm in the economy of New Orleans.
When local economic regulation is challenged solely as violating
the Equal Protection Clause, this Court consistently defers to
legislative determinations as to the desirability of particular
statutory discriminations.
See, e.g., Lehnhausen v. Lake Shore
Auto Parts Co., 410 U. S. 356
(1973). Unless a classification trammels fundamental personal
rights or is drawn upon inherently suspect distinctions such as
race, religion, or alienage, our decisions presume the
constitutionality of the statutory discriminations and require only
that the classification challenged be rationally related to a
legitimate state interest. States are accorded wide latitude in the
regulation of their local economies under their police powers, and
rational distinctions may be made with substantially less than
mathematical exactitude. Legislatures may implement their program
step by step,
Katzenbach v. Morgan, 384 U.
S. 641 (1966), in such economic areas, adopting
regulations that only partially ameliorate a perceived evil and
deferring complete elimination of the evil to future regulations.
See, e.g., Williamson v. Lee Optical Co., 348 U.
S. 483,
348 U. S.
488-489 (1955). In short, the judiciary may not sit as a
superlegislature to judge the wisdom or desirability of legislative
policy determinations made in areas that neither affect fundamental
rights nor proceed along suspect lines,
see, e.g., Day-Brite
Lighting, Inc. v. Missouri, 342 U. S. 421,
342 U. S. 423
(1952); in the local economic sphere, it is only the invidious
Page 427 U. S. 304
discrimination, the wholly arbitrary act, which cannot stand
consistently with the Fourteenth Amendment.
See, e.g., Ferguson
v. Skrupa, 372 U. S. 726,
372 U. S. 732
(1963). [
Footnote 5]
The Court of Appeals held in this case, however, that the
"grandfather provision" failed even the rationality test. We
disagree. The city's classification rationally furthers the purpose
which the Court of Appeals recognized the city had identified as
its objective in enacting the provision, that is, as a means "to
preserve the appearance and custom valued by the Quarter's
residents and attractive to tourists." 501 F.2d at 709. The
legitimacy of that objective is obvious. The City Council plainly
could further that objective by making the reasoned judgment that
street peddlers and hawkers tend to interfere with the charm and
beauty of a historic area and disturb tourists and disrupt their
enjoyment of that charm and beauty, and that such vendors in the
Vieux Carre, the heart of the city's tourist industry,
Page 427 U. S. 305
might thus have a deleterious effect on the economy of the city.
They therefore determined that, to ensure the economic vitality of
that area, such businesses should be substantially curtailed in the
Vieux Carre, if not totally banned.
It is suggested that the "grandfather provision," allowing the
continued operation of some vendors was a totally arbitrary and
irrational method of achieving the city's purpose. But rather than
proceeding by the immediate and absolute abolition of all pushcart
food vendors, the city could rationally choose initially to
eliminate vendors of more recent vintage. This gradual approach to
the problem is not constitutionally impermissible. The governing
constitutional principle was stated in
Katzenbach v. Morgan,
supra at
384 U. S.
657:
"[W]e are guided by the familiar principles that a 'statute is
not invalid under the Constitution because it might have gone
farther than it did,'
Roschen v. Ward, 279 U. S.
337,
279 U. S. 339, that a
legislature need not 'strike at all evils at the same time,'
Semler v. Dental Examiners, 294 U. S.
608,
294 U. S. 610, and that
'reform may take one step at a time, addressing itself to the phase
of the problem which seems most acute to the legislative mind,'
Williamson v. Lee Optical Co., 348 U. S.
483,
348 U. S. 489."
The city could reasonably decide that newer businesses were less
likely to have built up substantial reliance interests in continued
operation in the Vieux Carre and that the two vendors who qualified
under the "grandfather clause" -- both of whom had operated in the
area for over 20 years, rather than only eight -- had themselves
become part of the distinctive character and charm that
distinguishes the Vieux Carre. We cannot say that these judgments
so lack rationality that they constitute a constitutionally
impermissible denial of equal protection.
Page 427 U. S. 306
Nevertheless, relying on
Morey v. Doud, 354 U.
S. 457 (1957), as its "chief guide," the Court of
Appeals held that, even though the exemption of the two vendors was
rationally related to legitimate city interests on the basis of
facts extant when the ordinance was amended, the "grandfather
clause" still could not stand, because
"the hypothesis that a present eight-year veteran of the
pushcart hot dog market in the Vieux Carre will continue to operate
in a manner more consistent with the traditions of the Quarter than
would any other operator is without foundation."
501 F.2d at 711. Actually, the reliance on the statute's
potential irrationality in
Morey v. Doud, as the
dissenters in that case correctly pointed out,
see 354
U.S. at
354 U. S.
474-475 (Frankfurter, J., joined by Harlan, J.,
dissenting), was a needlessly intrusive judicial infringement on
the State's legislative powers, and we have concluded that the
equal protection analysis employed in that opinion should no longer
be followed.
Morey was the only case in the last half
century to invalidate a wholly economic regulation solely on equal
protection grounds, and we are now satisfied that the decision was
erroneous.
Morey is, as appellee and the Court of Appeals
properly recognized, essentially indistinguishable from this case,
but the decision so far departs from proper equal protection
analysis in cases of exclusively economic regulation that it should
be, and it is, overruled.
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
MR. JUSTICE MARSHALL concurs in the judgment.
MR. JUSTICE STEVENS took no part in the consideration or
decision of this case.
[
Footnote 1]
The pertinent provision of the New Orleans ordinance, c. 46, §§
1 and 1.1 of the Code of the City of New Orleans, as amended August
31, 1972, provides:
"Vendors who have continuously operated the same business within
the Vieux Carre under the authority of this Chapter for eight or
more years prior to January 1, 1972, may obtain a valid permit to
operate such business within the Vieux Carre."
[
Footnote 2]
Most of appellee's sales, particularly during the summer months,
were made in the Vieux Carre.
[
Footnote 3]
Jurisdiction was invoked pursuant to 28 U.S.C. § § 1331,
1343(3), (4), and 2201-2202. The equal protection violation was
alleged to constitute a violation of 42 U.S.C. § § 1983, 1985.
[
Footnote 4]
See generally 2 App. 31-63 (Excerpts from Comprehensive
Study Plan and Program for the Vieux Carre Under a Demonstration
Grant from Department of Housing and Urban Development).
[
Footnote 5]
Ferguson presented an analogous situation. There, a
Kansas statute excepted lawyers from the prohibition of a statute
making it a misdemeanor for any person to engage in the business of
debt adjusting. We held that the exception of lawyers was not a
denial of equal protection, stating, 372 U.S. at
372 U. S.
732:
"Nor is the statute's exception of lawyers a denial of equal
protection of the laws to nonlawyers. Statutes create many
classifications which do not deny equal protection; it is only
'invidious discrimination' which offends the Constitution. . . . If
the State of Kansas wants to limit debt adjusting to lawyers, the
Equal Protection Clause does not forbid it."
(Footnote omitted.)
We emphasize again that these principles, of course, govern only
when no constitutional provision other than the Equal Protection
Clause itself is apposite. Very different principles govern even
economic regulation when constitutional provisions such as the
Commerce Clause are implicated, or when local regulation is
challenged under the Supremacy Clause as inconsistent with relevant
federal laws or treaties.