State v. Isabel

• Citation: 40 La.Ann. 340,4 So. 1
• Decision Date: 01 March 1888
• Docket Number: 10,073
• Court: Supreme Court of Louisiana
• Parties: THE STATE OF LOUISIANA AND POLICE JURY OF THE PARISH OF JEFFERSON v. W. J. ISABEL

4 So. 1

40 La.Ann. 340

THE STATE OF LOUISIANA AND POLICE JURY OF THE PARISH OF JEFFERSON v. W. J. ISABEL

No. 10,073

Supreme Court of Louisiana

March 1, 1888

APPEAL from the First Justice's Court for the Parish of Jefferson. Chapman, J.

G Leche, District Attorney, and H. N. Gautier, for Plaintiffs and Appellants.

W. L Thompson, for Defendant and Appellee.

WATKINS J. FENNER, J.

OPINION

MOTION TO DISMISS.

FENNER, J.

The Police Jury of the Parish of Jefferson passed an ordinance forbidding the keeping open of taverns, coffee-houses and retail liquor shops after 10 o'clock at night or earlier than 4 o'clock in the morning, and inflicting as a penalty for its violation a fine of twenty dollars for each offense.

Defendant, prosecuted for such a violation, filed a written plea in which he expressly admits the facts charged, but sets up that the ordinance was null and void, because he had paid licenses to the State and parish, and the ordinance passed after such payment was ex post facto. The justice sustained the plea or demurrer, from which judgment the appeal is taken.

The motion to dismiss is based on two grounds, viz.:

1st. That the case is unappealable.

This is untenable. It is apparent from the above statement that the case involves a contestation as to the constitutionality or legality of a fine or penalty imposed by a municipal corporation. This authorizes an appeal to this Court under Art. 81 of the Constitution.

2nd. That the proper persons are not made parties to the appeal.

Both the State and the police jury are parties appellant, and the defendant was duly cited as appellee. What other party is required we cannot conceive.

It may have been unnecessary for both the State and police jury to join in the appeal, but certainly their joinder obviates all possible defect of parties.

The motion to dismiss is, therefore, denied.

ON THE MERITS.

WATKINS J.

The defendant was arrested on the charge of having violated the following ordinance of the Police Jury of the Parish of Jefferson, Right Bank, viz.:

"All tavern and coffee-house keepers, and retailers of spirituous liquors, are forbidden to keep their houses open later than 10 o'clock p. m., or to reopen them earlier than 4 o'clock a. m. following; provided, that they shall be allowed to keep open on each Saturday night until 12 o'clock, under penalty of a fine of twenty dollars for each and every contravention, unless they are authorized to do so by special permission from the police jury."

On the trial the defendant filed a demurrer to the proceedings against him under the foregoing ordinance, on the grounds substantially, viz.:

1st. That he had paid a State and parish license as a retailer of spirituous liquors previous to the enactment of the ordinance in question, under which he is entitled to keep his place of business open until 12 o'clock at night; hence it violates the law.

2nd. That this ordinance, passed and promulgated subsequently to the issuance of his said licenses -- if intended to control him in the exercise of all or any of his rights thereunder -- is an "ex post facto law, which is null and void and retrospective; and, therefore, he prays to be hence dismissed," etc.

The justice of the peace sustained the demurrer and dismissed the proceedings against the defendant; and, on his decision, the jurisdictional contention of legality vel non of the ordinance is here presented by the State, and parish of Jefferson.

Said ordinance was enacted and promulgated on the 23d of March, 1887, and defendant's violation of it is laid on Monday, the 19th of July following.

He relies on the provisions of Section 1 of Act 18 of 1886, as authority for keeping his place of business open until 12 o'clock at night.

That act is commonly known as "the Sunday law." It provides "that from and after the 31st day of December, 1886, all stores, shops, saloons and all places of public business, which are or may be licensed under the law of the State of Louisiana, or under any parochial or municipal ordinance, and all plantation stores, are hereby required to be closed at twelve o'clock on Saturday nights, and to remain closed continuously for twenty-four hours," etc.

There is no mention made of any other than Saturday night; and Sunday night is included, by necessary inference. Argument is not needed to demonstrate the fallacy of defendant's contention in this particular. This statute is one which contains prohibitions and penalties alone. It does not purport to grant any privileges to any one. It was enacted and promulgated antecedent to the said ordinance of the police jury, and it is in no sense inconsistent therewith.

II.

It appears, from the record, that the defendant paid for, and procured his ...