30-502 La.App. 2 Cir. 6/26/98, Horseshoe Entertainment v. Bossier Parish Police Jury

• Decision Date: 26 June 1998
• Citation: 714 So.2d 920
• Parties: 30-502 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 920

714 So.2d 920

30-502 La.App. 2 Cir. 6/26/98

HORSESHOE ENTERTAINMENT and Louisiana Riverboat Gaming Partnership, et al., Plaintiffs-Appellants, v. BOSSIER PARISH POLICE JURY, Defendant-Appellee.

No. 30502-CA.

Court of Appeal of Louisiana Second Circuit.

June 26, 1998.

Lunn, Irion, Johnson, Salley & Carlisle by Charles W. Salley, James Migalis, Penny N. Nowell, Shreveport, for Plaintiffs-Appellants.

Pugh, Pugh & Pugh by Robert G. Pugh, Shreveport, James M. Bullers, Bossier Parish District Attorney, Benton, for Defendant-Appellee.

Before HIGHTOWER, BROWN and PEATROSS, JJ.

[30-502 La.App. 2 Cir. 1] BROWN, Judge.

Two riverboats engaged in gambling activities and berthed in Bossier City filed this action to restrain and enjoin the enforcement of a $.50 per person boarding fee imposed by the Bossier Parish Police Jury and for a declaratory judgment that the fee was invalid.

Prior to the enactment of the admission fee by the police jury, Bossier City, the only agency authorized by the legislature to impose a $2.50 admission fee, and the boats executed an agreement whereby the boats paid a fixed amount in lieu of a per person boarding fee and in lieu of "any future legislative modifications ... regarding distribution of riverboat gaming revenue." By resolution, the police jury, who was not authorized to receive any gaming revenue, had approved this agreement in return for a $300,000 annual payment from each boat. Thereafter, La. R.S. 4:552 (now R.S. 27:93) was amended to authorize the $.50 admission fee now in question. This additional $.50 was allocated to go to the parish road fund. The trial court found that the amendment that authorized the $.50 boarding fee was not a special or local law. The trial court further found that "it would be against public policy to allow the Police Jury ... to enter into a binding agreement restricting and preventing the Legislature from, in the future, granting them the authority to assess a fee." (Emphasis added). With these rulings, we agree. The trial court, however, found that the police jury, rather than Bossier City, was the "local governing authority" authorized to impose the $.50 admission fee. With this portion of the judgment, we disagree.

Discussion

La. Const. art. 12, § 6b provides that gambling shall be defined by and suppressed by the legislature. In 1991, the legislature enacted statutes authorizing the licensing of certain riverboat gambling operations. La. R.S 4:501 et seq. Citing [30-502 La.App. 2 Cir. 2] the legislative duty to "suppress" rather than "authorize" gambling, opponents challenged the constitutionality of these statutes in Polk v. Edwards, 626 So.2d 1128 (La.1993). In Polk, the supreme court found that the delegates to the 1973 Constitutional Convention made three significant changes concerning gambling.

First, they removed the moral condemnation that gambling is a vice. Second, they adopted the word "suppressed," rather than "prohibited." Finally, they stated, explicitly, for the first time in a Louisiana Constitution, that the legislature shall define gambling, an obvious constitutional incorporation of the Gandolfo [v. La. State Racing Commission, 227 La. 45, 78 So.2d 504 (1954) ] language regarding "how, when, where and in what respects gambling shall be prohibited or permitted."

Polk, supra at 1141.

The supreme court concluded that the legislature has the power to determine how, when, where, and in what respects gambling shall be prohibited or permitted. Thus, "considering the absence of a specific constitutional prohibition, we find that these four acts (including the act permitting riverboat gambling) are well within the legislature's police power and are also within the legislature's plenary power...." Id. at 1141.

La. Const. art. VII, § 1 provides that "the power of taxation shall be vested in the legislature, shall never be surrendered, suspended, or contracted away and shall be exercised for public purposes only." In Polk, the supreme court restated the rule that the taxing power vested in the legislature can be delegated, rather than surrendered, to local government. Accordingly, any taxing power entrusted to local government can be revoked or modified at the direction of the legislature. Polk, supra, at 1143.

Under La. R.S. 4:552 (now designated as R.S. 27:93) the legislature authorized the "local governing authority" of the parish or municipality where a riverboat is berthed to charge an admission fee of up to $2.50 for each passenger [30-502 La.App. 2 Cir. 3] boarding the gambling boat. In Bossier Parish, La. R.S. 4:552 directed that 80% of the boarding fee collected was to go to Bossier City, 5% to the Johnny Gray Jones Youth Shelter and 15% to the Bossier Parish School Board to be used solely for the Bossier Education Excellence Fund.

In 1995, the legislature amended La. R.S. 4:552 (now R.S. 27:93) to authorize a $.50 increase of the boarding fee in the Parishes of Caddo and Bossier with the monies being dedicated to the respective road funds of the two parishes. In Bossier Parish the money was to be used first to widen Airline Drive from I-220 to the Linton Road cut-off. When Bossier City refused to imposed the $.50 increase, the Bossier Parish Police Jury did, and this action was filed by the Louisiana Riverboat Gaming Partnership d/b/a Isle of Capri Casino-Bossier City (Isle) and Horseshoe Entertainment (Horseshoe). Horseshoe settled with the police jury, leaving only the Isle as plaintiff.

Local or Special Law

The Isle argues that Act 743 of 1995, which amended La. R.S. 4:552, is a local or special law and therefore unconstitutional. The Isle further argues that the trial court erred in relying solely on the case of Polk v. Edwards, supra, in determining that the act and therefore the statute was not unconstitutional. We disagree.

La. R.S. 4:552(A)(2)(i) states:

In Bossier Parish, if the local governing authority levies an additional fifty cent admission fee as authorized by Paragraph (1) of this Subsection, the funds derived from this additional fee shall be used in their entirety for the parish road fund and shall be used to provide that Airline Drive from I-220 to the Linton Road cut-off be made into a four-lane highway. After this project is completed the funds derived from this additional fee shall be used for general use in the parish road fund.

[30-502 La.App. 2 Cir. 4] The supreme court in Polk, supra, noted the axiom that the constitutional prohibition of local or special laws is not intended to restrict the use of the legislative power to further the state's interests, but rather to prevent abuse of that legislative power on behalf of special interests and to prohibit the exemption of an individual or private corporation from the operation of the general law.

General or public laws affect the community as a whole, whether throughout the state or one of its subdivisions. Local or special laws affect private persons, private property, private or local interests. Polk, supra. The supreme court stated:

A statute is not a local or special law within the meaning of the constitutional provision if persons throughout the state are affected, or if it operates on a subject in which people at large are interested, even though its application and immediate effect is restricted to a particular locality.

Polk, supra, at 1134; see also Livingston Downs Racing Association, Inc. v. State of Louisiana, 96-2890 (La.12/02/97), 705 So.2d 149, 156; Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015 (La.11/30/94), 646 So.2d 885.

Gambling is a statewide concern, as is the condition of our roads and our schools, regardless of its specific locale. Further, we can not look upon a single amendment to a statute and determine whether that amendment is local or special. Such a piecemeal approach would undermine our legislative process. The meaning and intent of a statutory provision is to be determined by a consideration of the statute in its entirety and all other laws on the same subject matter and a construction should be placed on the provision in question which is consistent with the express terms of the statute and the obvious intent of the legislature enacting it. Turner v. City of Shreveport, 437 So.2d 961 (La.App. 2d Cir.1983). La. R.S. 4:552 read in its entirety directs the distribution of the boarding fee in each parish where riverboats are licensed and a boarding fee is authorized. This is a statewide concern as there are several boats authorized throughout the state. Therefore, we find La. R.S. [30-502 La.App. 2 Cir. 5] 4:552 and its amendments to be constitutional.

The Agreement

La. R.S. 4:552 (now R.S. 27:93) authorized an admission fee if the local governing authority chose to assess it. Further, La. R.S. 4:552(B) provided that "[O]ther than to levy the admission fee authorized by Subsection A of this Section, no local governing authority may license or regulate the operation of riverboats and the gaming operations conducted thereon." (Emphasis added).

Bossier City, the local governing authority where the boats are berthed, chose not to assess the $2.50 per person boarding fee. Rather, the riverboats and Bossier City negotiated a fixed fee arrangement. The Bossier Parish Police Jury and other parish governmental agencies participated in the discussions leading up to the agreement. The police jury passed four resolutions approving the agreement reached by Bossier City. ¹ The resolutions state that the police jury would request the legislature to exempt Bossier Parish from "any future modifications to riverboat gaming legislation regarding the assessment or distribution of fees during the term (10 years) of this agreement" and that the police jury accepts $50,000 per year for the youth shelter and $300,000 per year for the police jury "in lieu of any future modifications which may be proposed ... (and) in complete satisfaction of any and all gaming revenues to be received...."

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