Garrett v. Aby

• Decision Date: 01 January 1895
• Docket Number: 11,725
• Citation: 17 So. 238,47 La.Ann. 618
• Court: Louisiana Supreme Court
• Parties: GARRETT, BLANKS ET ALS. v. THOMAS Y. ABY, MAYOR, ET AL; R. W. ALEXANDER ET AL., INTERVENORS

17 So. 238

47 La.Ann. 618

GARRETT, BLANKS ET ALS. v. THOMAS Y. ABY, MAYOR, ET AL; R. W. ALEXANDER ET AL., INTERVENORS

No. 11,725

Supreme Court of Louisiana

January 1, 1895

APPEAL from the Fifth Judicial District Court, Parish of Ouachita. Potts, J.

Stubbs & Russell for Plaintiffs, Appellees.

Thomas O. Benton for Defendants, Appellants.

Fred. G. Hudson for Intervenors, Appellants.

OPINION

WATKINS J.

This suit has for object to enjoin and restrain the city of Monroe, situated in the parish of Ouachita, in this State through its mayor, the secretary and treasurer, and the collector of licenses and taxes as well, each one, and all of them, from accepting any money, or acknowledging the tender of any money, or granting any receipt, license, permit, or authority from, or to any one, to exercise the calling of retailing any spirituous, or intoxicating liquors, or keeping a saloon, or drinking house in the parish of Ouachita, or in the city of Monroe.

It is further to restrain said officers, severally, from doing any act tending to nullify the will of the people, as expressed at a certain election that was held on the 21st of December, 1894.

The prayer of the petitioners is to that effect, and the parties enumerated were duly cited and enjoined.

The acting mayor, in the absence of the mayor, and the assessor and collector of city taxes, appeared and answered; and, quite a number of private individuals intervene, setting up a right adverse to that of the plaintiffs, joining the defendants, and resisting plaintiffs' demands.

On the issues thus joined, there was judgment in favor of the plaintiffs, and against the defendants and intervenors, perpetuating the injunction and restraining the aforesaid officers of the city of Monroe, and the City Council "from accepting any money, or acknowledging the tender of any money, or granting any receipt, license, permit, or authority from, or to any one, to exercise the calling of retailing spirituous liquors, or keeping a saloon, or drinking house in the parish of Ouachita, or in the city of Monroe, as directed by the election held in the parish of Ouachita, on the 21st of December, 1894," etc., from this judgment the parties defending and intervening appealed.

From the foregoing it will be perceived that it was decided at a parochial election, held in the parish of Ouachita, on the 21st of December, 1894, under the superintendence of the parochial authorities, that "local option" should prevail throughout the parish, and within the precincts of the city of Monroe as well; and that thereafter no receipt, license, permit or authority should be granted to any one within the limits of the aforesaid parish, including the city of Monroe, authorizing the vending or sale, by retail, of any spirituous liquors, until such prohibition should be recalled. It will be further perceived that the aforesaid authorities of the city of Monroe denied the efficacy of said parochial election in so far as the city was concerned, and insisted upon their right to continue to grant such license, notwithstanding such election.

The intervenors are individuals whose business will be prejudicially affected by said election if the decree of the District Court should be maintained, and the injunction continue to be perpetuated in respect to the authorities of the city of Monroe.

Having premised this much, it will now be necessary for us to look into the pleadings and ascertain the exact issues which were raised and decided below, and which are determinable by our decree.

Making this examination we find that the terms of the judgment have pretty accurately followed the allegations of the petition, answer and intervention. For the claim of the plaintiffs is that a large number of the citizens and electors of the parish of Ouachita and city of Monroe presented petitions to the police jury of the former, and the common council of the latter, praying for the submission to the qualified voters of the city and parish, respectively, of the question as to whether the sale of intoxicating liquors should be permitted or discontinued.

That the City Council deferred action until such time as the police jury should act; and the police jury having taken action and ordered an election, said council decided not to take any action whatever.

That at the election there was a large vote, in both city and parish, and a decided majority -- aggregating 426 votes -- of the votes cast was in favor of prohibition; and of this majority 211 were cast in the city of Monroe.

That the police jury regularly received, compiled and promulgated the election returns, and gave due notice of the result ascertained to the State Auditor and the sheriff and tax collector of the parish.

Ascertaining it to be the purpose of the city authorities to issue licenses for the fiscal year 1895 to retail dealers in spirituous liquors, in spite of the aforesaid election and its declared result, plaintiffs sought and obtained an injunction.

The defendants in their answer admit the election, and its prima facie result, but deny that the right of the city to issue licenses was thereby put at issue, decided, or in any manner affected.

They aver that under the original charter of the city of Monroe, of 1871, and its amendments, the City Council had, and still has, the exclusive power and control over the subject of taxes and licenses; and of the management and control of barrooms, drinking houses and saloons; and that in respect of those subjects said council is entirely "independent of the authority of the parish of Ouachita."

They further specially aver "that their chartered rights are above and beyond the control of the Legislature under the restrictions of the Constitution of 1879; and certainly can not be affected by any action of the police jury of the parish of Ouachita."

They especially deny any acquiescence on the part of the city council of Monroe, in said election, or the result thereof; and they also deny that a majority of the voters of the city voted at the election; and they affirm that if the question had been submitted to them directly, in their opinion a majority of them would have voted against prohibition -- the inference being that many persons who were opposed to prohibition refrained from voting on the ground that the city would not be affected by the result of the election.

They further specially deny that the provisions of Act 76 of 1884, under authority of which the election was held, did, in terms, or was intended to have any application to the city of Monroe; or that it did, or was intended to amend, modify, alter, or change any of the chartered rights of the city of Monroe.

The intervenors set out in their petition, substantially, the same defences as those we have outlined from the defendant's answer.

But the mayor of the city and the city treasurer took a different view of the situation, and, in a separate answer, admit the facts and allegations of the plaintiffs' petition, and declared themselves opposed to issuing licenses for 1895 to liquor dealers in the city of Monroe, "after the result of the election on the question by Ouachita parish, including said city."

They further aver that at a meeting of the City Council, held on the 13th of November, 1894, the question of holding an election and of temporarily issuing licenses until the police jury should act, was considered; and that at a meeting of the council, subsequently held on the 19th of November, 1894, a resolution was adopted, substantially to the effect that the police jury having ordered an election throughout the parish, it was unnecessary for the city to do so, consequently no election was ordered by the City Council.

The answer then avers that "it was understood that the election and result of election ordered by the parish would be binding on the city of Monroe. That the election ordered by the police jury resulted adversely to the issuance of licenses, both in the parish of Ouachita and city of Monroe, by large majorities in each. Your respondents, therefore, regarding the election ordered by the police jury, and the result of said election, as including and binding alike the city of Monroe (and the parish), have no opposition to make to plaintiffs' demand on the question presented. They therefore pray to be finally discharged, and for general relief.

From the foregoing analysis of the pleadings, the leading question for determination seems to be whether the city of Monroe is protected by its charter from the effect of the parochial election, so that the City Council may legally continue to issue licenses to retailers of spirituous liquors within the city limits, just as it had done previous to said election.

Viewed in this light, all questions of fact appertaining to the election, and the promulgation of its result, are pretermitted from the discussion. And, in this situation, the estoppels set up by the plaintiffs are of no consequence; for if, as a matter of law, the statute under which the election was held did not contemplate a repeal pro tanto of the charter rights of the city contra, the act of any one or more of the defendants and intervenors, in voting at said election, could not validate it and make it binding on the city. Indeed, it may well be doubted that the City Council could, by its silence and inaction, acquiesce in the result of the election, and accomplish the divestiture of charter rights beyond the scope of legislative mandate under which the election was held.

After the answer of the mayor and the treasurer had been filed, the plaintiffs appeared, by way of exception, to the effect that the intervenors had no right of action remaining in themselves because of the fact that the mayor had joined their...