Harper v. State, Dept. of Revenue

• Citation: 328 So.2d 669
• Decision Date: 23 February 1976
• Docket Number: No. 56549,56549
• Parties: Clyde E. HARPER, Plaintiff-Appellant-Relator, v. STATE of Louisiana, DEPARTMENT OF REVENUE, and Commission on Alcoholic Beverage Control, et al., Defendants-Appellees-Respondents.
• Court: Supreme Court of Louisiana

Page 669

328 So.2d 669 Clyde E. HARPER, Plaintiff-Appellant-Relator,
v.
STATE of Louisiana, DEPARTMENT OF REVENUE, and Commission on
Alcoholic Beverage Control, et al.,
Defendants-Appellees-Respondents. No. 56549. Supreme Court of Louisiana. Feb. 23, 1976.
Dissenting Opinion March 31, 1976.

C. R. Whitehead, Jr., Whitehead & McCoy, Natchitoches, plaintiff-applicant.

Robert L. Roshto, Commission on Alcoholic Beverage Control, Baton Rouge, for defendants-respondents.

TATE, Justice.

The plaintiff Harper's application for a retail beer permit was denied. By these proceedings, he seeks judicial review of the administrative denial of his application. La.R.S. 26:104. The district and intermediate courts upheld the denial. 313 So.2d 39 (La.App.3d Cir. 1975).

The application for a permit was denied because of a parish prohibition ordinance adopted in 1941 as authorized by a localoption election. La.R.S. 26:272, subd. A (1) authorizes denial of a permit in any subdivision 'wherein that business has been prohibited by a local-option election.'

Page 670

Due to a 1950 change in state law (see below), the prohibitory ordinance adopted as a result of the local-option election¹ is now invalid. We granted certiorari, 317 So.2d 625 (1975), to consider the holding of the previous courts herein that, nevertheless, such an ordinance may be held partially valid so as to justify withholding retail beer permits, despite its admitted invalidity for purposes of criminal punishment for violations thereof.

The ordinance in question was adopted in 1941 and prohibited the sale of All intoxicating beverages in Ward Two of the parish. It was enacted by the governing party to effectuate the result of a wardwide local-option election to such effect held earlier in the year. The election and ordinance were valid under state statutes then in effect.

However, by reason of 1950 legislation, local-option elections or ordinances can no longer prohibit selling of beverages containing less than 3.2% Alcohol by weight. La.R.S. 26:588 (1950); State v. Sissons, 292 So.2d 523 (La.1974). Under Sissons and succeeding jurisprudence, therefore, the ordinance was invalid in its prohibition of the sale of beverages of any alcoholic content (i.e., of more than 1/2% By volume).

Essentially, the plaintiff contends that the 1941 ward prohibition ordinance was totally invalidated by the 1950 state legislation. On the other hand, the defendant agency contends that the ordinance (prohibiting the sale of All intoxicating beverages) can be judicially revised so as to remain partially in effect by limiting its prohibition so as to apply against the sale only of beverages containing more than 3.2% Alcohol.

In State v. Sissons, 292 So.2d 523 (La.1974), we held that local-option ordinances in conflict with the 1950 state law were invalid. We stated, 292 So.2d 525--26:

'The power to regulate traffic in alcoholic beverages is vested in the State and the legislature may delegate such power to political subdivisions of the state. See State v. Emerson, 197 La. 783, 2 So.2d 212 (1941); State v. Gardner, 198 La. 861, 5 So.2d 132 (1941). However, by so delegating the State does not surrender its power and the legislature can at any time alter or recall the delegated power. State v. Gardner, supra; State v. City of New Orleans, 151 La. 24,...