# Everhardt v. City of New Orleans > Supreme Court of Louisiana · December 16, 1968 · 253 La. 285 URL: https://www.frixlaw.com/law-library/cases/9661241 ## Case - **Full name:** William EVERHARDT Et Al. v. CITY OF NEW ORLEANS, Victor H. Schiro, and Joseph Giarrusso - **Court:** Supreme Court of Louisiana - **Decided:** December 16, 1968 - **Citations:** 253 La. 285; 217 So. 2d 400; 1968 La. LEXIS 2532 - **Precedential status:** Published - **Opinion:** Dissent by Barham - **Judges:** Fournet, Summers, Barham, Hamiter, Bar-Ham - **Cited by:** 63 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9661241 ## Opinion text BARHAM, Justice (dissenting). I recognize the principles of law enunciated in the majority opinion that legislation is presumed to be constitutional, that the City of New Orleans under its police power has authority to regulate traffic on its public ways and streets in order to promote public safety, and that the city may make reasonable classifications in the drafting of ordinances to accomplish this purpose. I conclude, however, as did the Court of Appeal, that the only purpose which this ordinance serves is to minimize the injuries of operators and riders of motorcycles if they are involved in accidents. It is not designed to prevent accidents and is not, therefore, a public safety measure. The conclusions which the majority has made to supply constitutionality to this ordinance are not supported by the sparse record, so it must be assumed that these conclusions are in the nature of judicial notice. The majority finds that the ordinance promotes safety in the interest of the motorcyclist as well as others. I cannot determine how the wearing of a helmet by a motorcyclist can be conducive to the safer operation of his motorcycle. He is as accident-prone with as without the helmet in regard both to himself and to other mo *297 torists. Certainly an unhelmeted motorcyclist presents no increased danger to the rest of the motoring public. The most that •can be said to support the insistence upon the wearing of the helmets is my original •conclusion that the helmet may mitigate the cyclist’s injury after the fact, after the .accident, after the breach of safety. The majority also says that motorcycles ■constitute a greater traffic hazard “both in respect to the driver thereof as well as to ■operators of the other vehicles”. On the ■contrary, it would appear that the size and weight of motorcycles make them as to •others less hazardous than larger and more ■formidable vehicles. Finally it is reasoned that because of less body protection motorcyclists are “more susceptible to be injured and cause other injuries”. Only the assumption that they -are more susceptible to injury has validity in my mind and then not to a certainty. The assumption that the motorcyclist’s lack •of body protection makes other highway users more likely to be injured appears to "be without foundation or logic. I can find no basis for concluding that helmeting or ■even armouring our motorcyclists would •cause fewer injuries to others. The ordinance is simply an attempt to force one class of persons to mitigate or ■minimize their own injuries resulting from .accident without regard to causation of the accident or general highway safety. Deducibly and logically the ordinance will force one class of individuals to protect themselves from their own harmful acts or omissions or from the harmful acts or omissions of others. Generally the police power cannot be exploited to require the individual to protect himself from the wrongful acts of others, and only in extraordinary circumstances may the governing authority interfere with, or prescribe regulations for, the activity of individuals which is not harmful to others. The right of one to use his property as he chooses so long as his use does no harm to others is a natural liberty. Even when this right is exercised upon public thoroughfares, police regulation of it must serve an overriding public purpose. Police power is commensurate with, but does not exceed, the duty to provide for the real needs of the people in matters of health, safety, and general welfare. The deprivation of individual liberty by legislation under the police power must accomplish in an appropriate manner the particular public necessity. It is not apparent on the face of this ordinance that the general public or those not included in this particular class will derive any benefit from its enforcement. Reasonable classification is necessary and sometimes desirable. Motorcyclists are in fact, and may be in fact, placed in a distinct class so as to regulate their use of the streets and highways when the classifi *299 cation is for the safety, convenience, and general welfare of the public. However, this ordinance arbitrarily and unreasonably deprives the motorcyclist of individual liberty when the only purpose served is his self-protection and when other more numerous users of the streets who are similarly situated are not required to utilize devices and equipment which serve only to minimize their own injuries. This ordinance strikes at the heart of individual liberty — that is, the right to act and to use one’s property when that action and that use harm no one else. In the face of the ordinance’s obvious deprivation of the constitutional right of free action and use of property of a small and arbitrarily selected group there must be some showing of an overriding service to the public. Not even speculation totally outside the record, the briefs, and the arguments before us can possibly sustain a conclusion that a public purpose is being accomplished by this ordinance. The ordinance is no doubt humane and even eminently sensible, but it is nonetheless unconstitutional. That our citizens in almost unanimity think it foolhardy to ride-a motorcycle without a protective helmet is not alone a criterion for defining the-non-use of the helmet a crime. Although laws have been validly enacted to protect, the legally incompetent from their own-acts, some of the persons who disregard the most elementary forms of self-preservation are, unfortunately, not legal incompetents, but only fools; and “ * * * a fool must follow his natural' bent “(Even as you and I!)” Observing no public harm in the acts, sought to be controlled and no public good as a derivative of the ordinance, I conclude that the city has exceeded its police-power and that the ordinance is unconstitutional. I therefore respectfully dissent. Rehearing denied. HAMITER, SUMMERS and BAR-HAM, JJ., dissent from the refusal of a. rehearing. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9661241. Public record. Not legal advice.