Johnston v. Morehouse Parish Police Jury, 15076-CA

• Court: Court of Appeal of Louisiana (US)
• Citation: 424 So.2d 1053
• Docket Number: No. 15076-CA,15076-CA
• Parties: Harold L. JOHNSTON, Plaintiff-Appellant, v. MOREHOUSE PARISH POLICE JURY, et al., Defendants-Appellees.
• Decision Date: 29 November 1982

Page 1053

424 So.2d 1053 Harold L. JOHNSTON, Plaintiff-Appellant,
v.
MOREHOUSE PARISH POLICE JURY, et al., Defendants-Appellees. No. 15076-CA. Court of Appeal of Louisiana,
Second Circuit. Nov. 29, 1982.
Writ Denied Jan. 28, 1983.

Page 1054

McLeod, Verlander & Dollar by Robert P. McLeod, Monroe, for plaintiff-appellant.

Rankin, Yeldell, Herring & Katz by James E. Yeldell, Bastrop, for defendants-appellees.

Before PRICE, JASPER E. JONES and SEXTON, JJ.

SEXTON, Judge.

Appellant Harold L. Johnston was prohibited from selling beer by an ordinance enacted by appellee Morehouse Parish Police Jury pursuant to a local option election. He now brings this appeal to challenge the lower court's determination that both the ordinance and the election were legally valid and binding. We find that the local option election which was the predicate of the prohibitory ordinance was not authorized by law. We therefore reverse.

Appellant Harold L. Johnston is the owner and operator of Community Grocery, a small store located approximately sixteen miles north of Bastrop, Louisiana, in Ward Two of Morehouse Parish. Community Grocery has been the site of a rural store for over fifty years, although Mr. Johnston has been the proprietor of the establishment only since January 1, 1979. At the time he began his proprietorship there in 1979, Mr. Johnston did not own a license to sell liquor. On May 17, 1979, the Morehouse Parish Police Jury granted Mr. Johnston a license to sell beer containing not more than 3.2% alcohol by weight. Mr. Johnston renewed his license in December of 1979, 1980 and 1981.

Page 1055

Mr. Johnston's store is the only beer outlet in Ward Two. Furthermore, the store is located two miles from the Louisiana-Arkansas border, directly opposite Ashley County, Arkansas, a so-called "dry" county in which alcoholic beverages are legally sold only in private clubs. Arkansans account for 98% of Mr. Johnston's total beer sales.

The record reflects that Mr. Johnston was unable to make a profit during the initial five to six month period in which he operated his store without a license to sell liquor. Although Mr. Johnston also sells gasoline and a full line of groceries, he testified at trial that beer sales account for 90 to 95% of his total yearly gross of $570,000. Mr. Johnston asserted at trial that, if beer sales were to be outlawed, he would remain in business "just long enough to close the doors."

On October 27, 1979, a special option election was held in the Ward Two of Morehouse Parish. The following question was one of four propositions presented the electorate at that election:

"Shall the sale of beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight be permitted?"

The voters responded negatively by a margin which is not stated in the record. On October 12, 1981, the Morehouse Parish Police Jury enacted Ordinance 1053 pursuant to this election mandate. The ordinance prohibited the sale in Ward Two of alcoholic beverages of varying degrees of potency, including "any beverage containing more than one-half of one percent ( 1/2 of 1%) alcohol by volume but not more than three and two-tenths percent (3.2%) by weight." The ordinance took effect on November 14, 1981, with law enforcement officials informing Johnston that they were ready to effectuate immediate enforcement.

Plaintiff originally sued to have Ward Two's special election invalidated on the basis of alleged procedural irregularities. These claims were found by both the trial court and then the Second Circuit to be devoid of merit. See Johnston v. Morehouse Parish Police Jury, 401 So.2d 517 (La.App. 2d Cir.1981).

Harold Johnston subsequently filed this suit on November 10, 1981 alleging that Ordinance 1053 was unauthorized under state law; he prayed that the ordinance be declared invalid and that the police jury be permanently enjoined from enforcing its provisions. The trial court issued a temporary restraining order precluding the ordinance's enforcement and ordered the Morehouse Parish Police Jury to show cause why injunctive relief should not issue. At that hearing, the trial court upheld the validity of Ordinance 1053 and denied appellant injunctive relief.

The issue to be resolved here is whether Harold Johnston was legally prohibited from selling 3.2% beverages. In answering this question we focus not on the prohibitory ordinance enacted by the Morehouse Parish Police Jury, but on the local option election which was the legal predicate of the ordinance enacted. This is because the powers of political subdivisions to ban the sale of 3.2% intoxicants is only that which is statutorily delegated to them by the state. The sole authorization for parish police juries to prohibit such sales by ordinance is contained in LSA-R.S. 26:595 which permits police juries to enact such ordinances pursuant to "an election held under the provisions of this Chapter." Thus, the power to pass prohibitory ordinances is dependent upon an election authorized by Title 26 of the Revised Statutes. If a valid election was conducted, then the ordinance is valid. Conversely, if the election was not authorized by Title 26, the Morehouse Parish Police Jury was not empowered to pass the ordinance. Consequently, our sole inquiry is: Was the Morehouse Parish Police Jury legally empowered by Title 26 to conduct the Ward Two option election which served as the legal predicate for the sales ban contained in Ordinance 1053? We find, for the following reasons, that Morehouse Parish Police Jury was not thus empowered.

The state has the ultimate power to regulate and prohibit the sale of intoxicants. The logical corollary of this premise

Page 1056

is that political subdivisions of the state possess only such regulatory or prohibitory powers as are expressly delegated to them by the state through statutory enactment. See Harper v. State Dept. of Revenue, 328 So.2d 669 (La.1976); State v. Wright, 305 So.2d 406 (La.1974); State v. Sissons, 292 So.2d 523 (La.1974). Therefore, in the absence of an applicable statutory delegation, we must summarily conclude that the instant option was unauthorized and thus null and void.

The statute urged by appellees as the source of their authority to conduct an option election on prohibiting the sale of 3.2% beverages is LSA-R.S. 26:586.1. This statute provides that:

"A. In addition to the procedure for calling local option elections by petition of...