Blanchard v. Gauthier, 47970

• Decision Date: 28 March 1966
• Docket Number: No. 47970,47970
• Citation: 248 La. 1107,184 So.2d 531
• Parties: Joseph A. BLANCHARD v. Millard GAUTHIER.
• Court: Louisiana Supreme Court

Page 531

184 So.2d 531

248 La. 1107

Joseph A. BLANCHARD v. Millard GAUTHIER.

No. 47970.

Supreme Court of Louisiana.

March 28, 1966.

Burton, Roberts & Ward, by John F. Ward, Jr., Baton Rouge, for defendant-appellant-relator.

R. Gordon Kean, Jr., Parish Atty., John V. Parker, Asst. Parish Atty., for intervenor-appellee-respondent.

McCALEB, Justice.

The question presented for decision is one of first impression in this Court--it is whether or not an area formerly constituted as a 'dry ward' by a local option election retains such status following its reorganization and reincorporation as part of another larger ward by vote of the people of the parish.

The litigation began when defendant, Millard Gauthier, applied to the State of Louisiana and the Parish of East Baton Rouge for permits for the calendar years of 1964 and 1965 to sell alcoholic beverages (beer) at retail in Ward Three of East Baton Rouge Parish within that part of the ward, formerly designated as the Tenth Ward, which was abolished in 1949 as a constituted unit of the political subdivision when the electors adopted a new form of City-Parish government for East Baton Rouge Parish pursuant to authority granted said parish by Article 14, Section 3(a) of the State Constitution.

Opposition to Gauthier's application was filed with the State Collector of Revenue and the Board of Tax Appeals by plaintiff, Joseph A. Blanchard, and thereafter a hearing on the opposition was scheduled before the Board of Tax Appeals in accordance with the provisions of R.S. 26:283. Meanwhile, an intervention was filed in the proceedings on behalf of East Baton Rouge Parish opposing the application. At the time of the hearing Blanchard made no appearance and has since abandoned his protest to the issuance of the permit sought by defendant. The contradictory proceedings were then conducted between the intervenor parish and the defendant applicant. Thereafter, the Board of Tax Appeals rendered an order dismissing the opposition whereupon intervenor appealed to the Nineteenth Judicial District Court for East Baton Rouge Parish. Pending the appeal, the State of Louisiana issued applicant a permit for the year 1964 and, subsequently, granted a license for 1965. A similar permit was declined by the parish for these calendar years.

On appeal to the district court, judgment was rendered vacating the order of the Board of Tax Appeals and the State and Parish were restrained and prohibited from issuing the requested permit to Gauthier, who appealed from this judgment to the Court of Appeal, First Circuit, where the judgment of the district court was affirmed. See Blanchard v. Gauthier, La.App., 178 So.2d 385. Gauthier then applied to this Court for a writ of review which was granted and the case has been argued and submitted for our determination.

The salient facts are that, conformably with the provisions of the Local Option Law then in effect (Act 17 of the First Extraordinary Session of 1935), the Police Jury (the then governing body of East Baton Rouge Parish) conducted an election on December 7, 1937 in the Tenth Ward of the Parish, as it was then subdivided, for the purpose of determining whether the sale of intoxicating liquors in said ward was to be prohibited. The election carried and the ward was voted 'dry' and remained so at least until 1949. In that year (as heretofore stated) the electors of East Baton Rouge Parish, pursuant to the authority granted by Article 14, Section 3(a) of the State Constitution, voted to abolish the existing parish form of government by Police Jury elected from the ten wards and adopted a new form of City-Parish government whereby the parish was internally resubdivided by consolidating its former ten wards into three wards. Ward Ten became nonexistent as a separate political segment of the parish by its consolidation with other areas, which were 'wet', and is now part of Ward Three of the parish.

It is the position of the intervenor parish that the area formerly constituting Ward Ten remains 'dry', notwithstanding the dissolution of Ward Ten as an integral governmental unit, unless its status is changed by a vote of the people on this specific question and that, until a local option election is called in the entire area comprising Ward Three and carried in favor of the sale of alcoholic beverages, no permit may lawfully issue for the sale of the same in that portion of Ward Three which previously voted 'dry' in 1937.

On the other hand, Gauthier asserts that, since the Tenth Ward no longer exists as a legally constituted subdivision of the parish, it cannot rightly be said that the area formerly constituting that ward is 'dry' and that the change of government, which was adopted by the people of the parish in 1949, repealed by operation of law the local option previously voted within the former 'dry' areas and produced the same effect as though a specific referendum had been submitted to the electors residing in such 'dry' areas. In addition, counsel argue that, to maintain intervenor's position, a portion of the area now comprising Ward Three must forever remain 'dry' as there is no legal method by which a local option election may be called for that portion of the present Ward Three which was once Ward Ten of the parish. ¹

In disposing of this issue, the Court of Appeal relied upon its previous decision in Hughes v. Parish Council (La.App. 48 So.2d 823, 25 A.L.R.2d 852), which presented the identical question with respect to the area formerly comprising Ward Four of East Baton Rouge Parish, and reiterated and reaffirmed the views therein expressed to the effect that, when an area, previously voted 'dry' in a local option election, is annexed to or consolidated with another area which is 'wet' because prohibition had not been adopted therein, that portion voted 'dry' is bound by the vote and remains so, unless lawfully changed either by a vote of the people on this specific issue or by legislative act.

Counsel for Gauthier urge that the holding in the Hughes case be changed ² forasmuch as the legislation dealing with local option laws, and particularly the provisions contained in Section 4 of Act 17 of the First Extraordinary Session of 1935 ('No election on any such question shall be held oftener than once a year.') indicates that the Legislature intended that the question of whether or not alcoholic or intoxicating liquors would be sold in a particular parish, ward or municipality should be a continuing one which the electors residing in the 'wet' or 'dry' area, as the case may be, would have an opportunity to correct from time to time. Counsel profess that the Hughes decision circumvents this legislative intent in the geographical area, once known as in the georgraphical area, once known as Ward Ten, cannot now, under the local option law, have an election held within that geographical area to reverse the results of the 1937 election which must remain in effect presumably ad infinitum. It is further said that at the time the Hughes case was decided there was also jurisprudence in other states which supported the contrary view. See State v. Donovan, 61 Wash. 209, 112 P. 260 and Village of American Falls v. West, 26 Idaho 301, 142 P. 42.

An examination of encyclopedic texts (see 48 C.J.S. Intoxicating Liquors § 68, p. 200 and 30 Am.Jur. ...