Gilbert v. Catahoula Parish Police Jury
This text of 407 So. 2d 1228 (Gilbert v. Catahoula Parish Police Jury) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
J. C. GILBERT and Barbara Jane Peck Gilbert
v.
The CATAHOULA PARISH POLICE JURY.
Supreme Court of Louisiana.
*1229 George Griffing, Jonesville, for plaintiff-appellee.
John Sturgeon, Ferriday, for defendant-appellant.
MARCUS, Justice.
J. C. Gilbert and Barbara Jane Peck Gilbert instituted this action against the Catahoula Parish Police Jury seeking a declaratory judgment decreeing section 9(2) of Catahoula Parish Ordinance No. 4-5-76[1] to be unconstitutional. The trial judge rendered judgment in favor of plaintiffs and against defendant declaring the challenged portion of the ordinance unconstitutional. Defendant appealed to the court of appeal. Since an ordinance had been declared unconstitutional, the court of appeal in accordance with La.Const. art. 5, § 5(D)(1) ordered the case transferred to this court for review under our appellate jurisdiction.[2]
The facts generally are not in dispute. On April 5, 1976, pursuant to La.R.S. 33:1236(5),[3] the Catahoula Parish Police Jury adopted Ordinance No. 4-5-76 which provides, inter alia, that an owner of livestock who permits his livestock to run, roam or be at large on any of the public highways, commons or any other land other than his own shall be guilty of a misdemeanor. The ordinance further provides that it will apply to livestock running at large in any portion of the parish except three certain described areas, only one of which is at issue in this litigation, which *1230 area is described as: "[t]hat roadway located in T11NR8E known as `Gambrell Lane' from its intersection at its southerly end with Louisiana Highway 15 to the north line of Section 34, T11NR8E." No fences are required by law within that area of the parish where livestock are prohibited from roaming at large. During the regular session of the 1975 Louisiana Legislature, Gambrell Lane, in its entirety, had been added to the list of public roads on which livestock were not allowed to roam at large;[4] however, during the next session of the legislature the following year, Gambrell Lane was removed from the list.[5] It was stipulated at trial that Mr. Gilbert advised his state senator and representative by letter that he had no objection to the removal of Gambrell Lane from the list.
Gambrell Lane is a two-lane gravel road located approximately three miles north of Sicily Island. It begins at the intersection with the east side of La. Highway 15, proceeds southeasterly for approximately one mile, turns northeasterly for about three-quarters of a mile and finally winds in a westerly direction where it rejoins Highway 15. It is a moderately traveled public road which serves as a bus route and mail route for a portion of the rural area of northeast Catahoula Parish and is about five miles long. The open range created by the exception at issue consists of the first one and one-half miles of the road. The property adjacent to this open range is owned exclusively by Mrs. Gilbert (plaintiff) and Garland Barron and his wife. The Barrons own all of the land on the north side of the road which they use for agricultural purposes. They also own two cow pastures on the south side. Positioned in between the Barrons' pastures is the property owned by Mrs. Gilbert and leased to Jerry Green. This property is used to grow soybeans or for row crop production. A large part of plaintiffs' livelihood is derived from this farm and Mr. Gilbert takes an active role in the farming operation requiring that he visit the property on practically a daily basis. Plaintiffs own no cattle.
Pursuant to the establishment of a portion of Gambrell Lane as an open range, the police jury installed three cattle guards or gaps, one across Gambrell Lane about one-quarter mile from where the open range begins, another across Gambrell Lane at the far end of the open range, and the third one across the driveway into the Gilbert property. The cattle guards or gaps have the effect of keeping the cattle off of Highway 15 and the closed range portion of Gambrell Lane and from entering the Gilbert property. Additionally, the police jury erected barbed wire fences on both the property owned by the Barrons and Mrs. Gilbert. In an effort to more adequately protect their crops from livestock damage, the Gilberts paid for the installation of an additional strand of barbed wire along the frontage of their property. The parties are required to maintain the fences. The Barrons' fence to the north of the road which protects their farming operation is well maintained but their fences to the south are in disrepair. There are openings in the fences fronting the two cow pastures owned by the Barrons and located on each side of the Gilbert property on the south side of the road which permit the Barron cattle to roam unattended between the two pastures via the open range. The Gilbert property is entirely fenced except for the driveway.
Mr. Gilbert testified that the Barron cows use the open range extensively, not only as a thoroughfare between the pastures, but also as a place to lie. The only livestock that use the open range are those owned by the Barrons or their employees. Plaintiffs complain that the designation of this portion of Gambrell Lane as an open range forces them to cross two cattle guards in order to reach their property, maintain the fence installed by the police jury, and to lose full utilization of their farmland by virtue of having to fence in their property.
Plaintiffs contend that the portion of the ordinance that creates an open range of one and one-half miles of Gambrell Lane *1231 is unconstitutional because it constitutes an unreasonable exercise of the police power vested in the police jury which deprives them of the full use and enjoyment of their property. They further argue that it is an attempt by the police jury to grant the Barrons a special or an exclusive right or privilege.
La.Const. art. 1, § 4 provides:
Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
The test to be applied in determining whether a particular ordinance is a reasonable exercise of a government's police power is whether there is a real and substantial relationship between the regulation imposed and the prevention of injury to the public or the promotion of the general welfare. City of Shreveport v. Curry, 357 So.2d 1078 (La.1978). While an ordinance is accorded a presumption of constitutionality, and the burden of proving invalidity rests with the challenging party, government does not have the unlimited authority to regulate the lives of its citizens and may only pass laws which are reasonably related to protection or promotion of a public good such as health, safety or welfare. City of Shreveport v. Curry, supra; Everhardt v. City of New Orleans, 253 La. 285, 217 So.2d 400 (1969); Hi-Lo Oil Company v. City of Crowley, 274 So.2d 757 (La.App. 3d Cir. 1973).
First, we find that the ordinance making a portion of Gambrell Lane an open range effectively deprives plaintiffs of the right to fully control, use, enjoy and protect their property.
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407 So. 2d 1228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilbert-v-catahoula-parish-police-jury-la-1981.