finding unconstitutional statutes that created a governing board tasked with licensing commercial marine divers because they vested arbitrary powers to the board and violated the constitutional property rights of the plaintiff marine divers to engage in business
How later courts described this case
- finding unconstitutional statutes that created a governing board tasked with licensing commercial marine divers because they vested arbitrary powers to the board and violated the constitutional property rights of the plaintiff marine divers to engage in business
- noting "[ t] hat the pursuit of a legal occupation is a property right" and " that the right to engage in a lawful calling is of such a basic nature that the curtailment of the right by oppressive or arbitrary legislation effectuates a deprivation of the complainant' s property without due process and denies him equal protection of the law"
Written by the judges who cited it.
The opinion
PONDER, Justice
(dissenting).
I cannot agree with the majority opinion handed down in this case for the reason that the plaintiffs have no proprietary right to engage in the calling of marine diving in the public waters of this State. The statute regulating marine divers contains two penal clauses, viz: (1) making it a violation to engage in the occupation without having procured a license, punishable, upon conviction, by a fine in a sum not to exceed two thousand dollars or six months in prison, or both; (2) making it a violation for any awarding authority or its agents to employ or use any person in the performance of commercial diving activities, other than a duly licensed master marine diver, punishable, upon conviction, by a fine of not less than one thousand dollars .nor more than fifteen hundred dollars, or imprisonment for not less than thirty days nor more than three months, or both.
An injunction- is not authorized in my opinion in a case involving a statute containing a penal clause except where there is an actual or threatened loss of a property right, the unconstitutionality of the statute is manifest, and where there is irreparable injury for which there is no adequate remedy at law. . All three of these conditions must exist before a court is authorized to enjoin the enforcement of the statute. Devron v. First Municipality, 4 La.Ann. 11 ; Levy & Company v. City of Shreveport, 27 La.Ann. 620 ; City of New Orleans, v. Becker, 31 La.Ann. 644 ; Hottinger v. City of New Orleans, 42 La.Ann. 629 , 8 So. 575 ; State v. Crozier, 50 La.Ann. 245 , 23 So. 288 ; Boin v. Town of Jennings, 107 La. 410 , 31 So. 866 ; Mathews v. Town of Farmerville, 121 La. 313 , 46 So. 339 ; Louisiana Oyster & Fish Co. v. Police Jury, 126 La. 522 , 52 So. 685 ; Osborn v. City of Shreveport, 143 La. 932 , 79 So. 542 , 3 A.L.R. 955 ; Le Blanc v. City of New Orleans, 138 La. 243 , 70 So. 212 ; Godfrey v. Ray, 169 La. 77 , 124 So. 151 .
In the case of Louisiana Oyster & Fish Co. v. Police Jury, supra, this Court held that no one engaged in any pursuit had a proprietary right in the use of the public waters of this State.
I am of the opinion that the conclusion reached in the majority opinion is contrary to the holdings in the aforementioned cases and indirectly overrules the holdings in these cases.
I respectfully dissent.